A Nonprofit's Legal Counsel Is the Social Media Manager's Best Friend
That headline isn't a lawyer joke. And let me say upfront, I respect lawyers and legal issues that nonprofits and foundations have to navigate around social media.
However, I realize that in some nonprofits the relationship between in-house legal counsel or the organization's lawyers is based on fear and control. As a social media nonprofit professional mentioned in a Facebook thread recently, "I've observed interesting dynamics with legal counsel over social media with the result of increased paranoia among employees or a blanket ban. Often, the lawyers start from a position of fear and declare that no one can use social via work. Period. " This can have a chilling effect on an organization's social media strategy to say the least. It runs counter to the "networked mindset" that is so important to being a networked nonprofit and building networks and movements.
But it isn't like this in all nonprofits or foundations as I discovered as part of my preparation for a session at the Council on Foundations on Sunday called "Riding the Wave of Civic Engagement" with Daren Garshelis, Counsel, Alliance for Justice and Kate Wing, Program Officer, Gordon and Betty Moore Foundation. The session will focus on exploring how nonprofits are expanding their efforts to influence public policy through social channels and understanding the legal issues and how to evaluate the work. (I'll be talking about the latter as it relates to some of the ideas in my new book, "Measuring the Networked Nonprofit," co-authored with KD Paine.)
Daren is the Counsel for the Alliance for Justice which hosts "Bolder Advocacy" site which is the definitive and outstanding "what you can do and how you can do it legally" resource as as my colleague, Jon Stahl suggests. The "Influencing Public Policy in A Digital Age" is their comprehensive guide. The Alliance will also be publishing a brief "cheat sheet" that summarizes the rules. In our prep call, Daren clearly explained what to keep in mind when using social channels to engage with elected officials - and boils down to the distinction between elevating or educating about a policy issue and partisan support - the latter is not allowed by IRS guidelines. But, I'm not a lawyer, so you may want to advantage of Daren's organization free technical assistance by phone or email from legal experts.
What I was most intrigued by was how nonprofits could avoid the "fear" and "paralysis" that might happen navigating these issues with their in-house counsel or what would happen, if they made a mistake? The Boulder Advocacy cheat sheet will be excellent tool for nonprofits as they are brainstorming content/engagement strategies to use social to reach legislators. And certainly the guidelines and best practices would be referenced in a social media policy, but you can educate, train, be care, and mistakes do happen. I wondered, what happens if someone makes a mistake? Does the IRS do real-time monitoring and take away the organization's 501-c3?
According to Daren, the IRS is most likely to investigate a one-off inappropriate digital communication only after a complaint from a third party. And enforcement is rare. But with that said, he says it is very important to make sure that nonprofits comply with the c3 rules with their digital communications because there is some possibility, they could get into trouble with the IRS if they do not, and because their funders might think they don't know the rules (which could jeopardize future funding opportunities). But if an organization makes a one-time mistake and does something to correct it, he would recommend not losing sleep over it.
Legal Issues and Social Media
I asked social media professionals what issues typically come up in their social media work and how they establish a good working partnership with legal. Here's the advice:
- In-House Seminars: Kami Huyse mentioned that in her work with some clients, particularly hospitals, social media use of all employees and HR comes up as an issue with the legal department. One approach is to bring in a law firm that specializes in social media and do a seminar for staff to help them better understand what can and cannot be done legally.
- Structured Working Partnerships: Lovisa Williams who works with the Department of State says it is important to work closely with the legal advisor in your agency or organization and to cultivate a relationship of mutual trust and respect. She works in partnership to vet issues that arise from their social media policy and online community management. Like any good partnership, this takes work and doesn't happen overnight. It is important to understand the legal's point of view and their expertise - and be ready to compromise. Lovisa also says don't just call your legal department when there is a crisis, work with them to share best practices and thought leadership on social media. She has also established a policy working group that consists of a mix of social media experts and lawyers. She also observes that addressing one issue is like "Whack a Mole" but others pop up. That's why it is good to have an going relationship and a policy group. Being proactive is also important.
- Establish Good One-on-One Working Relationship: Dan Michel who is responsible for social strategy at Feeding America says it is important to establish a good one on one relationship. Take your legal counsel to lunch! He says that she has been invaluable on advice on both organizational posts and personal posts involving the organization and how to follow social media best practices and say out of trouble. Dan mentions that their biggest legal concern is violating UBIT Guidelines with sponsorships.
- Track and Share Articles: Lovisa regularly sends a social media digest of interesting policy and legal articles related to social media. She regularly reads and summarizes posts that discuss social media policy best practices and what to avoid. For example, this recent article in the NY Times about HR issues and your social media policy would definitely be something to send along to your legal counsel and get advice on how to implement some of the legal recommendations.
Social Media and Employees
This recent article in the New York Times "Even if it Enrages Your Boss, Social Net Speech Is Protected" has many nonprofits re-thinking their social media policies.
The labor board's rulings, which apply to virtually all private sector employers, generally tell companies that it is illegal to adopt broad social media policies - like bans on "disrespectful" comments or posts that criticize the employer - if those policies discourage workers from exercising their right to communicate with one another with the aim of improving wages, benefits or working conditions.
But the agency has also found that it is permissible for employers to act against a lone worker ranting on the Internet.
The article has examples, but the advice is this:
Denise M. Keyser, a labor lawyer who advises many companies, said employers should adopt social media policies that are specific rather than impose across-the-board prohibitions.
Do not just tell workers not to post confidential information, Ms. Keyser said. Instead, tell them not to disclose, for example, trade secrets, product introduction dates or private health details.
But placing clear limits on social media posts without crossing the legal line remains difficult, said Steven M. Swirsky, another labor lawyer. "Even when you review the N.L.R.B. rules and think you're following the mandates," he said, "there's still a good deal of uncertainty."
Of course, it is important to CYA (Consult Your Attorney) and if you have established a good working relationship, you should be able navigate the legal issues that pop up around social media for nonprofits and not be so scared that you can't follow social media best practices.
How does your organization ensure that your social media policy is a living document and up to date? How are you working partnership with your organization's legal counsel to ensure a good balance between social media best practices and being legal? What are your best resources, blogs, or other sources for keeping up to date on this topic?
Flicker Photo By Mike Willis