Legal Considerations Impacting Use of Social Media: A Double Edge Sword

While social media can be a powerful tool to foster customer and constituency engagement the absence of clear guidelines relating to their use may have unintended legal consequences.  A study by Gartner[1] shows that legal implications notwithstanding many organizations lack effective social media policies.   The report cautions that “by the end of 2013, half of all companies will have been asked to produce material from social media websites for e-discovery, so enterprises need an overall governance strategy for all applications and information, and this strategy should include content created on social media.”

Social media is deemed to be a discoverable source of information just as any other form of electronically stored information (ESI).  Accordingly, organizations should take steps to identify, capture, control and preserve social media content in the same manner as they manage other sources of content particularly if such information is considered to be an information resource of business value.  However, the principal challenge with social media is that its use is largely ephemeral in nature and the boundaries between personal and corporate uses may be blurred.

So what are the possible legal ramifications associated with inappropriate use of social media? They may be wide ranging consequences that encompass copyright infringement, defamation, invasion of privacy, violation of labor laws and in some cases criminal liability.

Canadian courts have affirmed discoverability of social media provided that it is material and relevant evidence. For example, the Ontario Superior Court decision in Leduc v. Roman the defendant in a negligence claim sought a production order to examine plaintiff’s Facebook page to rebut his claim of injury that “might have some relevance to demonstrating Plaintiff’s physical and social activities, enjoyment of life and psychological well-being.”  Not only is social media content discoverable it is now also an approved process to serve notice of claim.  A recent decision of the Alberta Queen’s Bench in Knott Estate v. Sutherland held sending notice of action to defendant’s Facebook profile was valid.

Copyright infringement is a common cause of action relating to the use of social media.  User generated content by cutting and pasting is a common practice which in some cases may constitute an infringement of the copyrights owner’s exclusive rights to control the use and reproduction of the copyrighted material.  And there are clever tools[2] that track the use of licensor’s visual content through the use of advanced crawling and recognition technology.

Of particular import is the use of social media in a manner that may be defamatory.  A recent case in point is the decision of the British Columbia Labor Relations Board in Lougheed Imports Ltd where it was held that the dismissal of two employees based on derogatory comments on their Facebook page was valid on the ground that their Facebook friends consisted only of co-workers. As such the use of Facebook was deemed to be workplace related and not personal use.

Inappropriate use of social media by employers may lead to claims of discrimination.  Research shows that over 20% of Canadian companies surveyed check social media sites when screening prospective job applicants.

There are other more sinister exploitation of social media with tragic consequences as evidenced in the very recent case of a Rutgers University student who was convicted of videotaping a roommate kissing another man and then tweeting about it to other students which led to the roommate’s suicide.

In a broader context protecting the privacy of personal and personally identifiable information is one of the most challenging aspects associated with the proliferation of social media technology as collection of such information represents a bonanza for on line advertisers.  An example is the recent decision by Google to combine information gathered across all of its service offerings to provide a more comprehensive profile of its subscribers.  By virtue of the new privacy policy subscribers do not have the option to opt out.  Privacy advocates argue that “there is no way a user can comprehend the implication of Google collecting across platforms for information about your health, political opinions and financial concerns.”

The Gartner report suggests that "Social media content is like all other content that is created by companies and individuals and is subject to the same rules, laws and customs….Policymakers need to keep policies simple when it comes to what should and should not be done online. A good rule of thumb is that whatever the company code of conduct is for in-person encounters, and whatever the rules are for general good behavior and common sense apply in the online world as well."

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[1] http://www.gartner.com/it/page.jsp?id=1550715

[2] http://www.picscout.com/

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Special ARMA IT Videocast: What IT Professionals Must Know About Records Management Capabilities in SharePoint

The 2011 AIIM survey shows that nearly 40% of respondents are now deploying Microsoft SharePoint 2010 as an enterprise-wide Content Management (ECM) platform. The same respondents were also asked of their strategy for managing records using Microsoft SharePoint 2010. 35% of the respondents indicated that they had no long term preservation strategy, 25 % use it as a front end to an existing ECM system such as Open Text, EMC and IBM as they tend to have more robust and complete records management functionality, and only about 15% use Microsoft SharePoint 2010 native records management functionality. There may be several reasons for this – enhanced Records Management functionality is relatively new having been recently introduced in the 2010 release, implementation takes time to accelerate and to a large extent Microsoft SharePoint is still considered a collaborative platform that tends to augment already in place ECM systems. However, organizations are looking to consolidate their ECM platforms. Increasingly Microsoft SharePoint is considered a viable enterprise ECM solution. But just how robust is Microsoft SharePoint 2010 to support records management? To address this issue ARMA and Bruce Miller of www.rimtech.ca have collaborated in the development of a special videocast: What IT Professionals Must Know About Records Management capabilities in SharePoint 2010. The video can be accessed at  http://www.arma.org/IT/.

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BI Think Tank Summary, February 7, 2012

With a vision of Continuous Improvement in how CORADIX tries to positively influence the Business Intelligence (BI) situation in the Federal Government, we asked some of our top BI consultants to a brainstorming think tank on the issues of identifying obstacles to success.

 

With over 200 years of experience in the room (we are not that old, but there was quite a few people present), this is a summary of what we came up with in no particular order.

• The method of procurement used requires you to understand the problem, before you actually do, in many cases.
• There is a religious belief that the dominant ERP’s have all the answers.
• BI programs don’t really exist – they just call them that?
• Systems are not designed to report.
• BI is not considered an influencer.
• Business is very separate from IT departments, and they do not communicate very well with each other.
• Managers are not trained to think of the whole systems development life cycle.
• Boundaries are a big problem.
• Definition of metadata is a huge problem.
• Clients don’t give requirements; they give their version of a solution.
• Clients don’t know how to express themselves/their requirements.
• There is a need for better client sponsorship of BI programs.

We discussed the emergence of Agile BI from products such as Endeca, QlikTech, Tableau, and how these tools provide quick win solutions, and are succeeding in response to conventional BI programs that are failing. But, we mostly agreed that we could take advantage of this technology to enhance conventional systems. By empowering the user, we help to promote the importance of good quality data amongst the business users, and allow them to become better educated on their real requirements.

There was also a unanimous agreement on the need for the famous “purple people” coined in Wayne Eckerson’s presentation at theTDWI chapter meeting, describing the mix of a business savvy IT people, or IT savvy business people to cross the communication chasm between IT and business.

We identified the realities of dealing with federal government organizations – like getting executive sponsorship on long term projects from executives that are frequently on the move from one Department to another.

Please let us know if these are touching some of your buttons or if you have other ones we have overlooked.

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Comments on the Value of the Big Bucket Approach, from Bruce Miller

Bruce Miller, Founder and President of www.rimtech.ca shares his perspectives on the value of the Big Bucket approach to developing more effective and manageable retention schedules. He observed the following: “These are all good points you make Andrew. With this Big Bucket Approach you’re actually placing a less granular (bigger bucket) version of the retention schedule “in front of” the actual, detailed schedule. Suppose we have the following (3) accounting buckets:

• Cost Accounting 4 years
• General Accounting 5 years
• Retail Accounting 6 years

We can replace all of them with a single bigger bucket simply called ACCOUNTING, and set the retention period to 6 years, the longest of the smaller buckets. The consolidation has a profoundly positive effect on end user classification in a large EDRMS Project. Users can now classify faster, and easier. This leads to a big increase in overall enterprise-wide classification accuracy rate, which is crucial to the success of any EDRMS system.

Without a doubt this calls for some rather radical rethinking of the modern retention schedule and the practices surrounding it. There is no question there’s a price to pay for it – some documents will be kept longer than they need to be according to their original (shorter) retention periods. However that small price is more than worth it for the huge benefit of an acceptably high classification rate.”

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How Long Should I Keep My Records?

The proliferation of electronic records imposes a daunting task on organizations to effectively manage their records retention schedules. The challenge is how to strike a balance between legal and regulatory requirements and a more manageable retention schedule by consolidating similar or related record series into a fewer number of retention categories. A possible solution to this vexing problem is what is referred to as the “Big Bucket Theory” articulated by Susan Cisco: “Big Buckets for Simplifying Record Retention Schedules.” The premise of the theory is that aggregating record types into fewer retention buckets may result in a more simplified and accurate classification scheme.  Improved classification will in turn promote more efficient disposition, thereby reducing the propensity to retain records too long. From a legal perspective, a streamlined retention schedule may reduce the risks associated with having to potentially incur onerous document production costs in the event of a discovery requests.

On the other hand, the “Big Bucket Theory” requires application of longer retention periods to records that constitute a larger bucket. This may result in having to retain records for longer periods than it may be otherwise required and in increased risk of having to produce documents pursuant to litigation hold. Some argue that “the disadvantage in more complex environments is that this type of approach can result in the unnecessary retention of large amounts of records, as retention “big buckets” default to the longest retention requirement of their components.”

The potential application and value of the “Big Bucket Theory” depends on a number of factors.   Susan Cisco cautions that “In the final analysis, organizations need to weigh the odds of end users properly classifying content against risks of potentially retaining content longer than necessary. These risks are unique to each organization and are based on its history of litigation and regulatory scrutiny, its culture for risk tolerance, and its resourcing constraints.”

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A New Report on Government of Canada Electronic Recordkeeping Requirements; an Assessment

In a recent plenary presentation titled: Moving the Federal Information Management (IM) Agenda Forward, Corrine Charrette, Chief Information Officer Treasury Board Secretariat of Canada stressed the Government of Canada IM strategy is to ensure that “information is safeguarded as a public trust and managed as a strategic asset.” The Library and Archives Record Keeping Methodology provides the tools and processes necessary to identify value and control information resources of business value.

But what about an implementation methodology and best practices associated with the development of electronic record keeping systems? What electronic records management standards must an electronic records management solution support? What should the success metrics be in measuring outcomes arising from the implementation of an electronic records management solution?

Treasury Board Secretariat has made it clear in the Directive on Electronic Recordkeeping that Canada has adopted the International Council on Archives Module 2 requirements for EDRMS solutions. There you have it – all EDRMS solutions for GC must comply with the ICA Module 2 requirements.

To address these issues Bruce Miller the President and Founder of www.rimtech.ca has just completed an authoritative report. The report is entitled “Government of Canada EDRMS Requirements – an Assessment”.  The report is a comprehensive assessment of the requirements from a vendor-neutral, independent expert point of view. It answers the following two questions:

1.       What are the absolute minimum requirements that I will need, and which ones can I defer?

2.       How do OpenText and Microsoft SharePoint comply with the requirements?

We are making RIMtech’s new report on GC RK Requirements available for download here.

Hope you will find this Report informative.

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Geoffrey Moore on “Systems of Engagement and The Future of Enterprise IT”

Geoffrey Moore widely known for his ground breaking and transformative analysis of technology adoption life cycle (Crossing the Chasm) provides an incisive analysis of the impact of web 2.0 technologies on Enterprise IT. In his White Paper “Systems of Engagement and The Future of Enterprise IT” he advances the notion that that “Over the past decade, there has been a fundamental change in the axis of IT innovation. In prior decades, new systems were introduced at the very high end of the economic spectrum. Now it is consumers, students and children who are leading the way, with early adopting adults and nimble small to medium size businesses following, and it is the larger institutions who are, frankly, the laggards.” He then makes a compelling case that “What is transpiring is momentous, nothing less than the planet wiring itself a new nervous system. If your organization is not linked into this nervous system, you will be hard pressed to participate in the planet’s future.”

Of particular value to IT professionals focusing on Enterprise Content Management (ECM) is Geoffrey Moore’s analysis of the interrelationships between what he refers to as systems of engagement (aka social media) and systems of record. Social media wants to be free, perhaps only subject to principle-based controls, while systems of record by their very nature need to be subject to controlled processes. Social media is designed to facilitate collaborative knowledge creation processes, while systems of record are designed to transform that inchoate, subjective knowledge into re-usable best practices in the form of explicit knowledge. Such explicit knowledge is deemed a corporate asset with inherent business and informational value which must be preserved and protected as a record. Striking a balance between the transient and permanent nature of systems of engagement and systems of record is expected to create significant challenges for IT organizations.

Geoffrey Moore’s observation is that “Best practices in this new world are scarce, the pressure by the business to implement is accelerating, a generation of networked millenials is ready to enter the workforce, and connections back to the familiar world of systems of record are tenuous. Our traditional definitions of control and governance must adapt to meet the changes of this new world.” He provides highly practical and empirically validated recommendations on how to effectively integrate systems of engagement into systems of record. He concludes that “The challenge now is that organizations must redefine how they deal with these issues and extend how they think about control and governance in order to deal with social technologies that are much more distributed, informal, and ubiquitous than anything that we have known previously.”

Hope you will find the White Paper informative and helpful.

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