Social Media Crisis Management for Trial Lawyers

Today, 4.8 billion people worldwide use the internet, and approximately 4.48 billion of those internet users are active social media users. Throughout the COVID-19 pandemic, internet and social media use skyrocketed, with data usage up by more than 60%.

Now, more than ever, law firms and lawyers must think carefully about social media policies, internet and social media monitoring, and crisis management plans that include a digital component. The posting and sharing of negative or false and misleading content about attorneys or their law firms or the distribution of proprietary and confidential client information may be disastrous or very well fatal to the business. Lawyers should seriously consider allocating resources toward internet-based monitoring to enable swift and strong action to shut down offending content if necessary. 

With that in mind, here are some best practices for lawyers and law firms to utilize as a means to ensure positive social media sentiment (the attitude and feelings people have about your law firm and your personal and professional brand on social media), which can be critical for a firm’s survival and its ability to thrive

• A corporate communication strategy is a critical part of any crisis management plan.

A solid corporate communications strategy is a critical piece of any crisis management plan and will establish clear channels of and processes for communication with employees, management, clients, and other stakeholders. If built correctly, this communications strategy will help firms build a stronger corporate culture and trust in leadership, and will help solidify a positive reputation for the firm and its lawyers, both internally and externally. 

To accomplish this goal, management must spend time learning about the various stakeholders and their interests to understand how the firm may be misunderstood or how it may be missing opportunities to increase revenue and strengthen the corporate culture and brand. From there, the firm can and should implement its communications strategy to correct any misunderstandings, which will increase efficiencies and allow the firm to thrive.

Law firms should ensure that stakeholders feel like their opinions are valued. Keeping these critical players informed and happy will help to minimize the risk that they will take to social media to share their frustrations about the firm, which can cause significant and sometimes irreparable harm to the firm. Remember, employees and other stakeholders are a law firm’s most powerful weapon – whether used for good or bad. 

• What your stakeholders say and do on social media can and will be used against your law firm.

As trial lawyers know well, social media evidence can be extraordinarily useful in litigation. To ensure a law firm is not on the other end of a lawsuit where social media evidence is at play, the firms should be knowledgeable about the type of information social media platforms track and store. This will help the firm craft and implement appropriate social media policies and trainings.

Social media and other internet platforms often log IP addresses of their users, including at account creation and when an account holder logs in and out of their account. Social media platforms also track other subscriber business information (“SBI”), which the platforms preserve and retain during, and sometimes after, the life of an account. As many online bad actors choose to speak anonymously, this SBI is critical because it may allow the law firm to unmask those bad actors where appropriate.

Firms should use this knowledge as a guide to strengthen their corporate communications strategy and social media policies. If an individual or entity files a lawsuit against the firm or any of its lawyers, the firm should expect social media data to be the subject of a discovery request or a subpoena to a platform. By ensuring relevant policies are in place and enforced, the firm will be able to keep its finger on the pulse of online chatter, social media postings, and other relevant digital content. 

To understand more about what information is tracked and it may be used, you can take a look at your own social media activity—here are helpful links to downloading that data: Facebook, Instagram and Twitter.

• Don’t toss the TOS.

Each social media platform has its own policies, rules and guidelines—often called the “terms of service” (TOS). These policies govern how the platform operates, what type of content it prohibits, and how to notify the platform when a user is violating one or more of those rules. Law firms can and should use these policies as a vehicle for seeking removal of user-generated content that should not be posted online – for example content that is defamatory or otherwise misleading (e.g., leaked proprietary and confidential client data, false and misleading information about a company’s stock price, or false statements about a member of the law firm’s management committee).

If a user posts content that violates a platform’s policies, the law firm can submit a removal request citing that particular policy provision. The platform’s content moderation team will review the report, and if the offending content is determined to violate one or more of the platform’s policies, the content will be removed. It is important to note, however, that platform content removal can be a slow and frustrating process. In some instances, requests are granted very quickly, sometimes in less than 24 hours. In other cases, however, it takes months, and in some instances even longer. 

Thinking back to proactive monitoring, if the law firm is actively monitoring online chatter, it will be better equipped to protect its reputation and brand by appropriately seeking to remove offending content.

• Two wrongs don’t make a copyright

If a law firm identifies content online that violates its copyrights or the copyrights of a firm client, the quickest way to remove that offending material is typically by sending a copyright infringement notice. The Digital Millennium Copyright Act (DMCA), 17 U.S.C. Sections 512, 1201–1332, provides internet service providers (ISPs) a safe harbor from monetary copyright liability if they comply with certain statutory “notice and takedown procedures.” These procedures require ISPs to create and maintain a system for copyright owners to report infringement and to promptly respond to takedown requests. And, because the DMCA safe harbor is so important to social media platforms, they typically respond to proper DMCA notices within 24 to 48 hours. Here are some helpful links to report copyright infringement: Facebook, Instagram and Twitter. 

• Beware “Unofficial” Facebook pages.

Law firms that have chosen to have a social media presence expend a great deal of effort into managing that business-specific presence in a way that maximizes the company’s brand and furthers its mission. For one reason or another, many firms have made the affirmative decision not to have an online presence. However, irrespective of whether a firm has chosen to affirmatively post content on social media platforms, Facebook may create an “unofficial page” for any law firm or other business without the entity’s knowledge or approval. 

Because the page is generated by the platform without input from the firm, an unofficial page may be populated by inaccurate information. This misinformation can mislead current and potential clients, damaging the firm’s reputation – sometimes permanently. Although an unofficial page is unmanaged and unmonitored, employees, clients and other individuals will still be able to leave comments, share photos and post reviews about the firm. If a law firm is not monitoring social media, it may be unaware that current employees have posted sensitive client data or other private content on the unofficial page. Despite being “unofficial,” any and all content shared on an unofficial page could lead to significant reputational harm or open up the law firm and its partners to legal liability. It is possible for a business to request control of an “unofficial page,” but of course, the first step is identifying it. By keeping its pulse on social media sentiment, a law firm will be well positioned to take swift action to eliminate false and misleading online content and to quickly get back to business.