Traps for the unwary – the cross-over between social media and eDisclosure

Social media and electronic disclosure are two important subjects which many companies and their lawyers would rather ignore – their very names are enough to strike apathy into many hearts. eDisclosure provider CY4OR has joined forces with others to promote awareness about these two subjects, which can often become inter-related, and at short notice.

Some subjects do not get the attention they deserve, their very names causing lawyers and their clients to change the subject. In any context, the labels can have an alienating effect or can conceal what is really meant. A former director of the Imperial War Museum once said that he had to sell the hardest three words in the world, though he went on to achieve just that.  Twenty or more years ago, British railway companies, as uselessly incompetent then as now, decided that calling their passengers “customers” would stand substitute for any improvement in the service. The UK Civil Procedure rule-makers decided in 1999 that relabelling “discovery” and calling it “disclosure” would somehow make the process better.

Labels can arouse derision (“politician”), fear (“hoody”), contempt (“chav”) and so on, encouraging the suspension of thought as to what is embraced by these terms.

Sometimes, labels simply become affixed to a subject or category without direction or decision, in the way that “social media” has stuck to a range of mechanisms which allow people to communicate. Like the smooth green surfaces on Dartmoor which conceal deep quagmires, they are traps for the unwary.

Often the strongest emotion aroused by these terms is apathy. Just as the Greeks had many words indicating shades of meaning for types and gradations of love, so we really need to divide apathy into shades (of grey, of course) representing everything from a fingers-in-ears refusal to listen through to that type of mañana which accepts that there is a problem to be addressed, and possibly an urgent one, but which finds it easily displaced from by other things when mañana comes.  CY4OR has experience of this, because it is a common reaction to information security warnings which it is CY4OR’s business to give.

Social media and eDiscovery, separately and together, have this apathy-inducing effect on many businesses – right down to the moment when an employee slags off the company in a public forum, gives away its secrets, or bullies, insults or offends its other staff.  Suddenly, the generally amiable spirit which infuses Facebook, Twitter and the rest turns nasty. The acts themselves are not new – we have always had the ranter in the pub, the careless rumours about a possible takeover,  the gossip which suggests that the sales manager’s expenses would not stand scrutiny or that the girl in marketing is less than discriminating with her favours. Social media abbreviates the timescales to seconds and magnifies the potential audience to millions.

Malice is not an essential ingredient – lack of thought and innocent ignorance can convert an innocent exchange of the kind people used to exchange in the pub into a major scandal. Malicious or not, there used to be boundaries of time and space around the spread of damaging expressions;  social media like Twitter does not merely magnify the original audience but encourages escalation, as others broadcast a reply or reaction – ask the unpleasant youth whose racist comments at a football match converted a promising career into a 56-day prison sentence and loss of his university place thanks to Twitter exchanges lasting only a few seconds.

This sort of thing becomes a company’s problem if uttered in working hours, on company premises or in respect of company business or employees. Many companies, indeed, purport to control their employees utterances even when the company is not involved.

Issues are starting to pop up all over the place – a Californian employee has been sued over the ownership of ‘his’ Twitter followers; there is a strong adverse reaction brewing at the moment about the right of a prospective employer to ask for an applicant’s Facebook login details;  a Manchester housing worker was demoted because his views on gay marriage, posted on his Facebook page, were deemed unacceptable by his employer who claimed that their code of conduct gave them the right to censor his views on private matters (though I suspect they did not put it quite like that).

What makes all this particularly difficult for employers is that the use of social media can be a force for good – promoting the brand, creating a more personal set of connections between a company and its customer-base and fostering closer relationships within the company as well as outside.

The problems do not end with the utterances of a company’s own employees. That same immediacy and audience breadth is available also to those outside the company who are have reason to do it down – dissatisfied customers, ex-employees or the purely malicious.

And where does eDisclosure come into all this? Whether or not the company has purported to control its employees, and whatever the extent of its physical controls, any business is at risk from the inadvertent or deliberate spread of harmful messages.  If it is too late to stop the activity, the next best thing is to capture the evidence that it happened. Just as one should probably leave preservation of more conventional disclosure documents to the experts, so the trapping of social media data, whether inside the company or outside it, is best left to the experts.

CY4OR are joining forces with firms of solicitors and with other experts to try and improve understanding within companies of the balance between risks and benefits which social media brings, to suggest pre-emptive steps which might be taken, and to outline how evidence can be preserved for use in future disciplinary or legal procedures. CY4OR’s Bethan Williams has written an article called Social Media – the good, the bad and the ugly on CY4OR’s blog which distils what is being said at the joint sessions which the company has been giving.

The summary given in the article implies that lots of good practical advice is being dispensed. If the audience carries away no more than that these dull-sounding words and expressions can conceal real threats, the purpose will have been achieved.


About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in CY4OR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Social Media, Twitter. Bookmark the permalink.

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