Anarchy In Cyberspace: Checks & Balances Of Legal Communication


It's all fun and games until someone gets hurt. In this case, that "someone" turned about to be the victim of his own crime: John Mackey, CEO of Whole Foods, made an organic mess out of his affinity for anonymously (until now) denouncing competitors on Yahoo! financial message boards. (Among his victims was Wild Oats, which Whole Foods was in discussions to purchase. Mackey is the most recent in a long line of senior executives who failed to tread lightly in social media's minefield, and his actions raise (and re-raise) questions of how communicators fit into these unfavorable pastimes. How can they rein in renegade managers, make judgment calls on whether a nasty blogger is a conspirator or a legitimate threat, and implement standards of discretionary online etiquette? The answers, it seems, lay in an arrangement marriage between the PR and legal departments. Sound impossible? Here's how you can integrate the two functions to manage the anarchy of cyberspace. *Don't hold your breath: "Legal and PR need to work together now more than ever before," says Richard Levick, president/CEO of Levick Strategic Communications and an attorney. Consider how the Whole Foods messageboard postings became public as the ultimate supporting evidence: When the company's law firm had to file with the FTC, they had to hand over millions of documents detailing every aspect of the organization's business practices. Among these papers were the message-board quotes from Mackey, whose alias was thinly veiled. Given the seeming lack of preparedness among the company's spokespeople, one can assume that, after reviewing all documents submitted to the FTC, the lawyers didn't consider it necessary to inform the communications department of potential red flags. Lawyers should come to the PR team with this information so they can begin planning responses, but in most cases this doesn't happen. Thus, communicators need to be aware of FTC filings and actively pursue legal representatives for any information. (See sidebar for key questions to ask.) "You can't anticipate every crisis, but when you are filing something, you have an idea of what you're dealing with," Levick says. "You can identify things that are problematic, and that's the time PR and legal have to get together. Otherwise, you have a communications of collective breath holding." *Transparency, transparency, transparency: Maybe the word feels overused, but get used to it - it's not going anywhere anytime soon, thanks in part to the swell of new media platforms and consumer-generated content. "The blogosphere has matured to the stage where it is a serious part of the media," Levick says. "I would no more file blog post under a false name than I would go on television in Marx brothers glasses. You are too easily findable. People will out you." Accepting this reality will make a legal-department friendly communications strategy all the more palatable. *Sorry works: While not the number-one strategy recommended by lawyers, there is mounting evidence that apologizing is the best way to reduce the risk of litigation. "Failure to apologize is considered an integrity failure, which is where Whole Foods' CEO when wrong," says Jim Lukaszewski, president of The Lukaszewski Group. "PR executives must maintain their role of trusted advisor, and they must explain the nature of victimization to their client. Then you can start taking about options. The lawyer will come to the apology option last, but PR practitioners should come to it first, or at least early on." *Plan ahead: Lawyers are known for taking their time (surely unrelated to the fact that they bill $500 an hour), so having a policy in place that covers all legal questions that could arise is the best way to anticipate snags. "Blogging is done in real-time," Levick says. "Are you going to run every blog post through legal? If so, you'll be responding to a blog about every three months." With that in mind, once there is a policy in place, train all employees on the rules - and the implications for not following them. Legal representatives should be involved in every training session so they can answer questions and translate their semantics. Then, Levick says, "Always make sure you have more than one set of eyes reviewing the blog before it goes live." *Learn from others' mistakes: Don't think that anything your company's representatives do online is exempt from the usual rules of engagement; especially if you are a publicly traded company, you need to oblige by the same rules of discretion in a blog as you would anywhere else. Mackey and his brand learned that rule the hard way. Now he stands to be the sacrificial lamb for all of corporate executives' digital missteps. "The Whole Foods situation is a watermark," Levick says. "It's unfortunate for them that they have been caught in a moment in history. Until now, many CEOs didn't think of blogs in the same way they did traditional media - now they do." *Remember that this technology is fast - and forever: It happens all the time in the political arena: A candidate is running for office and winning votes based on his or her platform, and then the competitor comes up with lascivious photos from collegial indiscretions. Now, those photos have been replaced largely by online commentary/incriminating e- mails/MySpace profiles. To avoid potential slipups, always reiterate to executives that the opinions they launch into cyberspace could come back to haunt them when they least expect it. Finally, Lukaszewski says, it's a matter of taking a step back and revamping your approach. "As PR professionals, we talk about beingthe conscious of the organization," he says. "But executives don't need a conscious - they just need to understand the sensibility of behaving with integrity. Levick leaves PR professionals with these parting words as a caveat: "We are all whistling past graveyards hoping we're not the next topic." CONTACT: Richard Levick, rlevick@levick.com; Jim Lukaszewski, jel@e911.com Get Smart You may not be up on all of the legal lingo floating around your company, but that doesn't mean you can't ask lawyers smart questions when it comes to protecting a brand's reputation. Before any major filing with the Federal Trade Commission of the Securities Exchange Commission, for example, meet with the legal department and ask these questions: Did you notice any documents that might raise a red flag? Do you anticipate any likelihood of further investigation? Did you notice any personal e-mails to/from executives that seemed out-of-the-ordinary? Were blog posts/message-board posts/online comments included in the information you filed? If so, had you been made aware of these communications before they went online? Do they meet the company's standards for online behavior? If the company doesn't already have a policy, based on the volume and characteristics of the online content you filed, do you see the need to create a policy? If any red flags were raised, how can we anticipate the effect of that information becoming public? Was there any information that could incriminate any employee? Were all online communications transparent and executed without an alias? Were any online communications done anonymously?

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