#11 - How Should Senior In-House Counsel Respond to Uncontrolled Social Media Postings
Social Media Postings, part 1 - A Ukrainian GC's View from Exile
The topic this week and for the next two or three issues is a particularly difficult one.
To be honest, I’ve hesitated to tackle it, as I know it is a subject that could be massively controversial, and which is extremely sensitive for many.
The conflict in Ukraine has sparked a torrent of postings on social media.
My social media platform of choice is LinkedIn, and so I am most familiar with postings there. These have been overwhelmingly pro-Ukraine, as one would expect.
No one reasonably can doubt the justice of the Ukrainian cause.
For me, that is a given.
But, to my mind, there is a tricky issue here for senior in-house lawyers (in larger corporates, either the General Counsel or the Chief Legal Officer), and it is this.
Yes, the current conflict is morally clear-cut; but what about future situations that are less so?
If employees are given a free pass to post whatever they feel moved to post about regarding Ukraine, what happens in future where the situation is more morally blurred? Have companies’ current or historic social media policies effectively been abandoned?
As lawyers, certainly those of us who hail from the common law tradition, we are very familiar with the doctrines of Estoppel and Waiver. Once you have allowed something to happen, and others have changed their position as a result, it is quite hard to insist on going back to the former status quo.
What are the implications in terms of potential reputational risk?
The in-house lawyer (in larger corporations the CLO or GC) is the guardian of legal risk for the organisation. And this has increasingly included, I believe, to a certain or large extent, matters involving potential or actual reputational risk.
In a break from the normal format, this issue of Practical Counsel adopts a slightly different approach.
These introductory remarks frame and introduce this week’s email to me, which is from Seb, a senior in-house lawyer at a multinational corporation.
Seb poses the above issue and asks - what is the correct response of senior in-house lawyers, as leaders of their organisations, in the current circumstances?
My guest contributor this week is a Ukrainian General Counsel, Iryna Kravtsova, who knows more than the vast majority of my readers about the reality of the current situation in Ukraine. And she argues passionately - as one would expect - for employees to be allowed to post about Ukraine free from any restrictions whatsoever, in the particular horrendous circumstances that afflict her homeland.
I myself haven’t, as yet, reached a concluded view on the issue. In fact, I see my role in this debate, as being that of a facilitator, rather than that of an expert - unlike in previous topics that I have addressed in this newsletter.
So on this occasion I will respond very briefly to Seb, simply introducing Iryna’s response.
Following Iryna’s response I will write a few concluding remarks of my own - more in the nature of questions that to my mind arise for future debate and discussion.
In the next issue of Practical Counsel (issue #12), I will be publishing a comment piece from a very well-known media lawyer, Simon Olswang , who founded and grew the eponymous firm, Olswang, before Olswang merged with CMS and Nabarro a number of years ago. Simon has a quite different view to that expressed by Iryna.
And I envisage that the following issue of Practical Counsel will contain a response to what Simon has to say, by another guest contributor, whose identity will be confirmed in due course.
Enjoy reading, and please comment and contribute to the debate by posting direct on Practical Counsel. Also, please write in to me (firstname.lastname@example.org) with your unique leadership, management and/or relational issues insofar as they relate to in house legal. I unequivocally undertake never to reveal your identity and will change key details of your situation so as to preserve your confidentiality and anonymity (unless you don’t want this). I also undertake to write to you personally with my own thoughts and comments on your situation and am always happy to follow up with a call on Zoom or similar.
‘Dear Jonathan’ … and Jonathan’s Reply
I am the Global General Counsel of a medium-sized International Corporation. I won’t give any more details of my organisation, as it would probably be readily identifiable from any more detailed description.
The corporation for which I work has taken a stance on a variety of social and environmental issues, as one would expect nowadays. Again, I won’t give any details as these might reveal the identity of the Company, advertently or inadvertently.
As with many other corporations, a number of my very senior colleagues, including those at board level or a tier below board level, have posted about the conflict in Ukraine, including on LinkedIn.
I have genuinely not known how to deal with this highly unusual situation. I saw, for example, how Norton Rose Fulbright came under very heavy criticism when it tried to restrict its employees from posting.
I, like any right minded person, have 100% sympathy for the Ukrainian cause, and regard myself as a supporter of the conflict against Russia.
But I am worried by the precedent that unregulated postings might set for my organisation. We have a corporate-wide social media policy, and everyone knows that it is being completely ignored on this occasion.
I would really welcome your views on this situation.
Thank you for your very thoughtful email.
As you know from previous issues of Practical Counsel I am generally not shy at expressing my view on the issue or issues raised by my correspondents.
On this occasion, however, I don’t feel that it is my place to express a personal view. At least not until I have received some significant input from others who understand this issue, or who have thought about it deeply, much more than I have.
When I received your email I reached out to a number of people to discuss it with them. And I decided to devote several issues of Practical Counsel to the topic you raise. The Ukraine / Russia conflict is probably the most serious international issue of today, certainly for the UK, Europe and the US, probably for most countries in the world, to be honest, given the risk of the conflict proliferating way beyond the borders of Ukraine.
One of the people I spoke to to discuss your question is Iryna Kravtsova, this week’s guest contributor. Iryna is living the conflict, in the sense that she is one of the several million Ukrainians who have been forced out of their homeland. She is currently living outside Ukraine, watching her beloved homeland go through the nightmare of a brutal war with uncertain outcome.
Iryna is herself a General Counsel, a Graduate at Masters of Law level of the Kyiv National Economics University. She is currently a PhD student in Law of the National University of Life and Environmental Sciences of Ukraine.
I could think of no better person that Iryna to respond first off to your question. She inevitably has a very particular response, informed by what is going on in Ukraine right now.
I will share with you next what Iryna wrote to me when I shared your email with her - and then share some further thoughts, which are in the nature of questions for further debate and discussion rather than in the nature of solid conclusions.
A Ukrainian GC Shares Her View
Iryna Kravtsova is General Counsel of the Ukrainian subsidiary of a European business, founder of the General Counsel Club in Ukraine, and a current PhD student. A native of Kyiv, she fled Ukraine as a result of the Russian invasion and is living in Poland, she hopes temporarily.
I’m happy that you invited me to comment on what is for sure a very sensitive and controversial topic relating to social media postings – particularly given the current situation in Ukraine, my country.
By way of background I am a proud Ukrainian. I was forced to flee Ukraine (I live in Kyiv) and am currently living in Poland.
As a senior in-house lawyer, my position regarding social media postings (prior to the current war) was both very direct and very blunt: I should not make any postings and any comments on political topics in social media as I am the external ‘face’ of the company for which I work. I am convinced that employees’ postings and comments can reflect on the companies they work at.
During my years of working at international companies I learnt one rule – reputational risk prevails over all other risk, including financial issues that the company may come across. Damaged or destroyed reputation can mean financial loss, bad publicity, loss of customers, and falling sales – and can have a direct impact on the company stock price, in the case of a listed company.
If a company loses its reputation, it loses everything.
A company may recover after financial losses, it may rebuild assets that were destroyed, it may hire new specialists that will generate new ideas and launch new successful products.
But once the company loses its reputation, it can take a long time and both thoughtful steps and decisions to restore a previously good reputation. And such a restoration of reputation may never happen.
These are not mere words, but learnings from history, from diverse businesses, all over the world.
This was my considered thinking and position. And a position that was very clear to me.
Until 24 February 2022 … when Russia invaded Ukraine.
The above was my firm view, until Ukrainian people woke up early in the morning not because of the sound of their alarm clocks but because of the sound of exploding rockets near their houses.
It was my firm view until my country, Ukraine, was mired deep in oceans of blood, in innumerable deaths, and in the total nightmare in which it now finds itself.
The Russian-Ukrainian war changed everything. It changed lives and it has changed the way I think.
This is the time when – regardless of their previous views about social media - all Ukrainians and all right-thinking people across the world who support democracy and freedom, and who accord the supreme value to human life, want to have their say against this brutal war and to show support and solidarity for Ukraine.
Now, active social posting runs the full range of the social spectrum and comes from people who occupy vastly different positions: investors, top managers, senior employees, mid-level employees, white collar workers, and blue collar employees.
Why has this happened and why should the Russian-Ukrainian conflict be an exception with regard to social media postings?
It was almost 80 years ago that Europe experienced the tragedy of World War II on its soil.
Mass murders, ghettos, acts of genocide, crimes against humanity – all of these have been, as it were, cut and pasted from the pages of WWII history. They are happening today, on Ukrainian soil.
This is no ‘ordinary’ conflict, still less a political issue on which employees are expressing a view. This is a war, in which serious war crimes are being committed.
In a war like this one, we are reminded of the supreme importance of human life, the right of innocent human beings to live in peace, not to be raped and murdered in the name of a so-called ‘special military operation’.
We are reminded that individual human life and our collective shared humanity are the base and foundation of everything we hold dearest in this world.
What if humanity fails? What if there is wide-spread destruction, potentially destruction on an unprecedented scale; destruction caused by falling rockets and perhaps even nuclear weapons?
Faced with this nightmare scenario, should reputational risk be the thing that matters most? What importance corporate reputation when set against the risk of cataclysmic destruction, possibly leading to global conflict and nuclear Armageddon?
This probably sounds melodramatic and highly unlikely.
But, trust me, we Ukrainians treated as ‘highly unlikely’ the slim possibility of Russia launching an outright invasion on Ukraine.
So did the other ‘Western’ powers.
Another reason why I believe that employees should be allowed to post freely, in the context of the Russian-Ukrainian War, is as follows.
People and companies that supply goods and / or services either to, or within, the Russian territory need to be called to account – they need to take a clear stance and an unambiguous moral position.
In my view, the so-called civilised world shouldn’t accept the argument that certain individuals, such as company employees, should stay ‘out of politics’. There is simply too much at stake here.
Companies should be held to account. If they decide to stay in the Russian market they have made their choice and they are ‘fair game’ for social media comment. They can try to find excuses for their decision to stay engaged with Russia, but social media comments hold them to account and rightly cause their corporate reputation to go down, given their association with the sponsors of the aggression and those who are funding Russia.
Very often I’m asked personally how I’m not afraid to speak up.
Do I have any other choice?
Just imagine what you would do if someone came into your house with a weapon in his hands; if this someone threatened your family, your children, your wife, your husband, your parents; if this someone intended to rape your daughter or son or mother and kill them; if this someone wanted to destroy your house and take everything that you had earned in your life; if this someone made you leave your house and made you flee your country; if this someone tortured your neighbours and friends; if this someone violently killed your family pet.
What would you do? Would you keep silent? Would you do nothing because you were anxious about the reputational risk of the company for which you work?
Working for a Ukrainian business are you even sure that your company will continue to operate? It is, quite frankly, more likely to be destroyed by Russian bombs and rockets than by pro-Ukrainian social media postings.
As a Ukrainian is the right thing to hold back on social media posting because of the reputational risk to your employer? Is it morally justifiable to escape to safe territory and sit passively in front of the TV watching death, destruction, the mass murder of civilians – and do nothing, not even engage in the fight taking place via social media?
The reality is that the Russian-Ukrainian war has a hybrid form. This 21st century conflict is playing out via social media, and not just on the battle field.
So in my view, individuals can participate actively in the conflict, not just by holding physical weapons in their hands. They can engage in what is essentially a series of informational battles, where truth has to fight against propaganda and misinformation. We have all seen that Russia is using its might to propagate untruths, propaganda and fake news.
Viewed in this light, social media postings are about saving lives. This battle, in my view, trumps corporate concerns about reputational risk and shareholder returns.
We Ukrainians choose life.
And we have every right to do so.
We will shout about our basic human right in every possible way. And we will encourage and urge everyone else to do so, in the face of the outrage that is taking place on our soil.
Is this something that contradicts corporate policies and principles? I don’t think so. I think there are higher issues at stake, as I have argued above.
Perhaps when the war comes to the end and Ukrainians start living again, safe and free in their land, I will revert to my old position that employees should refrain from posting or making political comments. Perhaps I will then argue that they should protect their employers from reputational risks in every possible way.
But for now, it is the right time to stand up and be counted, to say what you want to say, as you want to say it. Now is the time for every individual to stand up for everyone, and for everyone to stand up for every individual.
Best wishes and thanks again, Jonathan, for providing me with this opportunity to express my views.
Some Questions Raised by Iryna’s Comment
In previous issues of Practical Counsel I have concluded the issue with some key takeaways. This week, Iryna’s comment raises questions for me, rather than providing me with key takeaways.
So here are a few questions that have occurred to me as I have read, and re-read, Iryna’s deeply personal, and moving, comment:
1. The Ukrainian War is without doubt the most significant conflict that has occurred in Europe since World War 2. It is also, in my view, without doubt a morally unambiguous war of aggression and terror, brought by Russia against Ukraine. But is it a unique situation in modern times, standing in a category all of its own (as lawyers would say, is it ‘sui generis’)?
Is there a concern that GCs, CLOs and other senior in-house lawyers are surrendering their objective decision-making and advice-giving – their calculus of risk, reputational and otherwise – in the face of both the moral outrage that is the War, and the moral outrage of those who excoriate the Russian invasion of Ukraine, and its barbaric treatment of the Ukrainian people?
2. Studying Law at University in the mid-1980s (the time, incidentally, shortly before the collapse of the Soviet Union), I was repeatedly taught that ‘Hard Cases make Bad Law’.
Is there a risk that, by allowing their companies to waive social media policies in the very, very, difficult circumstances of the Russia / Ukraine War, GCs and CLOs are allowing a hard case to dictate, or unduly shape, the course of their company’s social media policies going forward?
3. Is there are any limit to what companies should allow their employees to post about the Ukraine War on their social media feeds?
How should a senior in-house lawyer deal with a pro-Russian posting (say on Linked In)? – particularly one that isn’t demonstrable propaganda, but which might nonetheless be morally offensive?
If advising the key decision-makers to require an employee to take down a pro-Russian posting could the in-house lawyer be inflaming the situation rather than doing the right thing? Could the employee assert free speech rights or point to the free pass other employees are being given to write anti-Russian / pro-Ukraine postings?
How should a senior in-house lawyer deal with a pro-Ukraine posting that might be considered ‘over the top’, morally questionable or just potentially factually inaccurate? For example, what if a senior figure in the business started writing posts suggesting that individual acts of reprisals against Russian civilians were justified? Social media postings leave an indelible footprint, and aren’t easy to ‘take down’ once put up – so what would be the right thing for the senior in-house lawyer to advise in these circumstances?
I hope these questions might be addressed by Simon Olswang in his comment in the next issue of Practical Counsel, or by the expert who responds to him in the following issue.
For now, I’m sure all readers of Practical Counsel will join me in wishing Iryna, her friends and extended family all the very best.
And in hoping, and praying, for a speedy end to this dreadful conflict.
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And Now …
Contribute to the debate and write in with your comments and observations. Also write to Jonathan with any other people issues you face as an in-house lawyer.
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A note for you picky lawyers; and a plea for tolerance
I am a British lawyer by background and went to both school and University in the UK. So my English is British English. I have taken a conscious decision to write this newsletter in British English, but to try to avoid phrases that aren’t common outside the UK. Sometimes, though, I’ll use a phrase that isn’t commonly used outside the UK, without realising that it is a Britishism. I also endeavour to use the vernacular spellings of my contributors (e.g. to use US spellings for a US contributor), but won’t always get this right.
My plea is for you to tolerate the British spellings and grammar and the occasional Britishism. And to focus on the substance of the newsletter rather than the occasional (to you) annoying turn of phrase, bit of grammar or unorthodox spelling, or the occasional inconsistency in spelling as between, for example, UK and US ‘standard’ spellings.
Thank you and best wishes,