Crisis management in the social media age

By Julie Sobowale January 16, 201816 January 2018

Crisis management in the social media age

 

When a crisis hits, you want a calm person at the helm of your crisis management. That’s what Kelly Friedman learned early on in her career.

“If an injunction comes in, I’m the one who is calm in those situations,” says Friedman (pictured above), who is national counsel of BLG’s Discovery Services Group in Toronto, specializing in e-discovery, cybersecurity and privacy. “One partner once told me, ‘Thank you for your equanimity.’ I had to look up the word and it means even keel. The more nervous people get, the more calm I get. It’s a great tool as a litigator.”

Litigators aren’t the only ones who need a calm head. How an organization can weather a crisis is now largely based on who gets the information out first. With the rise of social media and the increasingly rapid news cycle, general counsel must be more prepared than ever to deal with the next crisis.

A situation can escalate quickly through social media. On September 7, Equifax revealed that 143 million Americans and 100,000 Canadians (later revised to 145.5 million and 8,000, respectively) had their data stolen as the result of a data breach. The story quickly became viral, with thousands of Twitter users tweeting under hashtag #Equifax. Within two days of the initial report, the Chief Information Officer and the Chief Security Officer retired and two class-action law suits were filed. Then, over the next couple of days, Equifax accidentally tweeted links to phishing websites (websites that mirror others, normally to steal information) to breach victims, causing further criticism and social media outrage.

More than Posting Updates

Organizations are learning quickly how social media is evolving. On top of tweets and posts, live streaming video through Facebook, Periscope and other services is a growing trend. On October 3, when Richard Smith, the former Chairman and CEO of Equifax who resigned as a result of the scandal, testified before Congress, the hearing was live streamed.

“When companies are planning crisis management, they have to ask, ‘Is this susceptible to live streaming?’” says Friedman. “The problem is not controlling the message. In the past five years or so, you’ve had to become more familiar or be a part of social media. It used to be okay to monitor Twitter or Facebook but more recently it’s much broader. There are so many different social media platforms right now. The Twitter platform is known for reputation bashing but what are your other platforms? This reinforces the need to have expertise.”

In-house counsel will be well familiar with the 24-hour news cycle. Now social media experts are cautioning executives to watch out for the 24-second news cycle, in which viral videos create or accelerate a crisis. The video of Dr. David Dao being forcibly removed from a United Airlines flight in April 2017 quickly went viral. In Dao’s home country, China, the video has had more than 210 million views on Weibo, China’s version of Twitter. The fallout is still being felt. In late October, the aviation officers who removed Dr. Dao from the flight were fired.

“Crisis management has become more 24/7,” says Wendy Law, Deputy City Solicitor, City of Mississauga. “The live streaming of an event can be misleading because the perception is that it’s the full truth. You don’t necessarily have the entire story. One person holding a phone to film an event and then putting the clip on social media is giving a particular point of view. Other things may be happening that he or she does not see, and yet by showing the clip, viewers may perceive that that is the entire story. We use social media to get the story out there and we need to understand public opinion. If there’s a crisis brewing, we need to change from being reactive to proactive and social media can be used as our communication outlet.”

Crisis = Opportunity

A crisis should be viewed as an opportunity, with organizations working to turn the newfound attention into positive coverage. This can be tricky. When Equifax set up an alternate website for consumers to find out if they had been affected by the breach, hackers quickly exposed the vulnerabilities in the website. Lawyers were advising people not to use the website and senior management was criticized once again for a poor response to the crisis.

“Even for a company going through their own crisis, you want to look for ways to pivot from victim to champion,” says Friedman. “You want to position [yourself] as helpers in dealing with the aftermath of crisis. For example, Jack in the Box did a tremendous thing. There was a major crisis [E.coli found in its beef in 1993] and they had a problem. In the course of the crisis, they hired a top guy in food safety science. They put together a whole safety protocol and invited other restaurants to learn from them. That’s brilliant. They said, ‘We’re going to revolutionize the industry and share our knowledge.’ In the first few years after hearing about Jack in the Box, people will talk about what happened but also in managing the whole aftermath. Even when the crisis is overall closed and there’s no more danger, it’s best not to forget, ‘How do I turn this situation?’ You want to trigger the discussion.”

In order to be equipped to turn your crisis around, management needs to be well prepared. In-house counsel have a critical role to play in a crisis management team, including evaluating risk and assessing legal options.

“A crisis has an element of surprise,” says Law. “The best thing we can do as counsel is to help minimize surprises. You can have all the systems in place but the work plan can change and the people you work with can change. You can do all the preventative measures but still have the surprises. In Equifax, I am sure it caught them by surprise. In managing the crisis, the questions are ‘What did we do?’, ‘What do we do now to minimize exposure?’ and ‘How [do we] manage our reputation?’”

Planning Makes Perfect

Every organization needs a crisis management plan. In-house counsel are in a unique position to be placed on the crisis management team due to their skills, expertise and relationships built across different departments in the organization. A standard will include media talking points, a clear list of action tasks for each team member, and a list of whom to notify and when.

“You want to get inserted into the crisis management plan—or convince your organization to create a plan if there isn’t one,” says Law. “You’re building the value proposition. As counsel, we can help our organization navigate through crises and formulate action plans. There may be possible litigation but you might want to preserve our rights or we want to be the plaintiff.”

In creating the crisis management team, you want to have contingency plans in place. Some crisis events, such as the devastating hurricane that hit Puerto Rico, can go on for months.

“All crisis management plans need to have backups, including people for yourself,” says Law. “The Fort McMurray fires was a crisis that lasted a long time. When there’s natural disaster, it can last a long time but no one can last 24/7 indefinitely. You need to pull people off and on and assume different positions. You need to think of having someone as a backup for you.”

The first step in crisis management is to recognize there’s a crisis. Every organization needs clear guidelines on what constitutes a crisis. When you are determining whether there’s a crisis, Law suggests going through the facts while keeping communication lines open with the public.

“You need to know who is able to pull the trigger and say what’s a crisis,” says Friedman. “A lawyer may be the one to pull the trigger or it could be someone in operations. If you’re the sole lawyer at a company, you can’t have only one person to pull the trigger. Maybe you have a first choice and then backups. Maybe you have the chair of the board. It should be someone who can trigger or say this situation isn’t reaching the level of a crisis.”

Another key trend in crisis management is the speed and amount of communication between organizations and the public. The most common issue for in-house counsel about communication during a crisis is protecting privilege. Friedman says counsel should be flexible in communicating to the public and have separate investigation and legal advisory roles on the team.

“Communications are going to argue with Legal about protecting privilege,” says Friedman. “You need to sit separately with PR people and not worry about that discussion being disclosed. You want to keep privilege in mind when you create separate channels. You can’t copy and paste and say something is privileged. That will not uphold in courts and will be counted as management discussions. In the U.S., there was a company that had a data breach and the courts found the investigative reports were protected under privilege because there was a team to investigate and a separate team advising management [Target's investigation of its 2013 data breach]. You want to regularly preserve client privilege.”

While you may not know when the next crisis will strike, you can work to create contingency plans for some common situations, such as severe weather or product recalls. Friedman warns that most teams neglect getting feedback from other departments.

“You need communications expertise,” says Friedman. “They would have a different list of categories, like someone saying something online would be higher up the list. For example, a toy company is always thinking about children getting hurt. Communications people might ask about consumers saying something about the product online that could spread like wildfire. Part of your plan is to deal with all your stakeholders.”

What happens when the CEO is in the centre of the controversy? Shortly after the Equifax scandal broke, Richard Smith resigned from the company, joining the Chief Security Officer and the Chief Information Officer. Meanwhile, the Harvey Weinstein controversy threatens to engulf board members of the Weinstein Company, from which at least five board members have resigned. Board members need crisis management training.

“There is a particular kind of crisis where you need more than board oversight,” says Friedman. “There can be a crisis [and] the board is having to step into a really difficult problem. Someone on the board will be trained on that and there should be a subcommittee deeply involved in the crisis, more than the general way. There may be a particular crisis where the members of the team might be gone, so you need to think about backups.”

“Training is so important, especially for boards. They may have to step out in front and reporters tend to ask questions out of the blue. If they’re not part of the legal or communications strategy, they won’t know how to answer the questions. You’ll need a FAQ and have training or it can be problematic.”

Whether a crisis involves board members, employees or even a single viral video online, in-house counsel want to be indispensable members of the team. The key is to think it out and be prepared.

“In-house counsel have a pretty good handle on whom to draw upon,” says Friedman. “They interact with different people in different ways and have particular insights on how departments work. Good in-house counsel will know what’s going on in every department. That’s the reason why they’re so crucial.”

Julie Sobowale is a regular contributor based in Halifax.

This article was initially published in the Winter 2017 issue of CCCA Magazine.

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