#12 - How Should Senior In-House Counsel Respond to Uncontrolled Social Media Postings
Social Media Postings, part 2 - Introducing the 'Down-Low GC' (DGC)
No reader of the last issue of Practical Counsel (issue #12) can have been unmoved by the heart-wrenching contribution of Ukrainian GC, Iryna Kravtsova.
Iryna, currently living in Poland, ‘exiled’ from her homeland, Ukraine, wrote of her fellow Ukrainians being woken 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’. She spoke of ‘mass murders … acts of genocide, crimes against humanity … as it were, cut and pasted from the pages of WWII history’.
You would require a heart of stone not to be moved by her piece.
So it is a brave person who responds to, let alone challenges, Iryna’s comment.
I’m going to be honest. It’s been hard to get anyone to go on the record, even though several GCs I have spoken to have disagreed with aspects of Iryna’s analysis, while having nothing but abhorrence for the barbaric Russian invasion.
I’ve written in an earlier issue about today’s ‘cancel culture’ and several of the GCs and law firm partners that I spoke to were afraid of being cancelled if they challenged any aspect of a comment written by a Ukrainian GC, torn from her homeland by an unjust war.
Simon Olswang - who, as I had foreshadowed in issue #11, was going to write a response to Iryna’s comment - has unfortunately contracted Covid, and was hospitalised this week. He is on the mend, I understand, but was unfortunately unable to make the contribution he had wanted to make. I wish him, as I am sure all PC’s readers do, best wishes for a very speedy recovery.
In his place, this week’s comment is written by a GC who wanted to comment, but would only do so on condition of strict anonymity. This position, I think, is consistent with the thrust of his posting (I say ‘his’, but this shouldn’t be understood as indicating his or her true identity), which is that employees shouldn’t write controversial postings where identifiable as (senior) employees of their organisation - given the risk of their personal views, sometimes highly controversial, being imputed to the organisations by which they are employed.
I’ve labelled this GC, perhaps somewhat whimsically as the DGC, the ‘Down-Low GC’.
Many of you in the UK will have come across or read the Secret Barrister. I bring you the Down-Low GC, the DGC.
This week I don’t publish an email from a correspondent, by way of preamble to my comment and a GC contribution.
Rather I just bring you the DGC’s comment, which is, I feel, a very incisive contribution to the debate. And following the DGC’s comment my own thoughts and takeaways, setting up next week’s issue which will be a response to the DGC.
If you would like to respond to the GC please write in. I might even publish your comment.
And in any event enjoy reading, and please comment and contribute to the debate by posting direct on Practical Counsel. Also, please write in with your unique people issues to me (firstname.lastname@example.org) - 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.
Introducing the Down-Low GC (DGC) - his comment and response to Iryna Kravtsova, Guest Contributor, Issue #11
The Down-Low GC is General Counsel of a well-known ‘brand name’ company. He / she writes under conditions of strict anonymity. He / she is a highly experienced in-house lawyer, with 20+ years experience of working in-house, for the past several years at GC / CLO level.
At the end of Iryna Kravtsova’s deeply moving contribution in issue #11 of Practical Counsel (regarding the impact of the war in her home country, Ukraine, and whether GCs should in any way police social media postings of employees), you posed several questions. They can, without doing you an injustice, be summarised in one central query: are there any limits on what employers should allow their employees to post on social media? The subsidiary issues are identifying those limits (where does one draw the line?) and the correct approach and reaction of the GC or CLO in these circumstances.
Iryna argues with understandable passion that the conventional response (steer clear of controversy and don’t risk reputational damage to your employer with posts that could reflect badly on that employer’s business – I summarise for space reasons only; she is much more articulate and persuasive than that) is simply inadequate. She doesn’t quote Dietrich Bonhoeffer’s famous line: Silence in the face of evil is itself evil. God will not hold us guiltless. Not to speak is to speak. Not to act is to act (The Cost of Discipleship [1948 – in English]) in support of her thesis – though she could have.
In disagreeing with her conclusion - that the Russian invasion of her country and the terror they have caused, changed everything and that now and as a result, social media protests are not only permissible but necessary - I do not for a nano-second disagree with her condemnation or challenge her fury at the war crimes being committed by Russian forces in the Ukraine. I agree unconditionally with her position. As you write elsewhere in your introductory comments to Issue #11: No one reasonably can doubt the justice of the Ukrainian cause. For me that is a given. It is for me too.
But … my focus is different. Personally, I regard the majority of social media as an undiluted cesspit of obscenity, defamation, misogyny and puerility. As I write, one of the current news stories in the UK printed press concerns the Mail on Sunday newspaper’s allegation by an unnamed (naturally) Tory MP that the Deputy Labour leader, Angela Rayner sought to distract Boris Johnson at Prime Minister’s Questions in the House of Commons by crossing and re-crossing her legs whilst sitting on the Opposition front bench. In an article in the Guardian newspaper about this story, another female Labour MP, Jess Phillips, said she received 600 rape threats in one day on Twitter. This is the new normal – only it is not so new. Social media has been like this for years. It’s scarcely regulated now and may be (even) less so when Elon Musk buys Twitter. Anything, as the musical title says, ‘anything goes’ on social media.
If your readers can be bothered to read any “HYS” (Have Your Say) below the line comments on virtually all online stories published by newspapers and other media, I am certain that they, too, will be appalled at the vitriol and abuse published, almost all of it anonymously.
In my view, one cannot have a sensible debate on social media. One cannot expect reasoned argument. One cannot change minds with soundbites. If the message is (still) in the medium, then the message is this: only use social media to take a leaf out of Donald Trump’s playbook and sneer, denigrate, abuse, traduce. Especially if you only have a relatively few words to play with. Don’t even think of using social media to advance a detailed, considered or rational discussion, let alone argument. Just use it to pour scorn.
And that leads me to my principal argument against allowing employees to post anything on social media that connects them with or identifies them with their employer, whether about the war in Ukraine or anything else. Fundamentally, since social media has become either an echo chamber where like-minded posters broadly share the same view or a forum for keyboard warriors who delight in mocking or provoking others (I accept that for the most part, LinkedIn users are the exception), what is the point of adding to the noise? It is virtue signalling. Even when it is utterly sincere and patently well-intentioned, it is still only virtue signalling.
It’s all too easy to be caught up in the horror of the daily news coming out of the Ukraine and justify an indignant post as a substitute for meaningful action.
If employees really do want to respond meaningfully to this war, they shouldn’t waste their time writing and posting on their social media accounts impassioned denunciations of Putin or the Russian military machine. Anyone can do that. How does it help? Who does it help? Do they think Putin reads them? Or anyone else in the Kremlin with any influence or power? By now, those who have any intelligence in Moscow know precisely what the world thinks of the war. But they either don’t care or are powerless. There are currently millions of pro-Ukrainian posts out there. What is the benefit of adding to that number?
Why not do something more useful and practical instead? Donate serious money to any of the charities supporting Ukrainian refugees. Offer shelter to those refugees if you have the space. Give food, clothing, toys, medicines, to the centres where volunteer drivers are transporting lorry loads of supplies to displaced Ukrainians both inside the country and in refugee centres in neighbouring countries. March and demonstrate outside the Russian Embassy.
Actions don’t always speak louder than words. But social media words alone, tweets, posts, whatever, are so inadequate. Once would-be commentators and posters have taken any of the practical steps mentioned above, then by all means they could indulge themselves, without being too self-indulgent, and compose a blistering attack on Putin. Just don’t post it as an identifiable employee of a business and have then to explain to a nervous GC or CLO why you are entitled, in the furious words of Ernest Bevin about the then pacifist Labour Party leader George Lansbury in 1935, to hawk your conscience publicly when, hopefully, like-minded colleagues, who share your views, are doing something altogether more useful.
Final point: I may be old school, but as a GC, I don’t want to be dealing with senior colleagues from the business, whether at Board level or otherwise, who want to know whether (and why) I approved or sanctioned the social media posts of employees of the company of which I am GC. It’s a judgement call, I suppose. And my judgement is to separate work from non-work. In its pretty anodyne paper on using social media responsibly, the representative body of Solicitors in England and Wales, the Law Society1, warns Solicitors against … the potential blurring of the boundaries between personal and professional use, and the importance of recognising that the same ethical obligations of professional conduct apply in an online environment.
Just as I didn’t want employees working for the company of which I am GC to be engaging in heated social media discussions over the pros and cons of Brexit, where at least the differences were more nuanced, or the UK Government’s response to the Covid pandemic, or how egregious Harry and Meghan’s behaviour is, I simply do not see the need for them to post their opposition, or worse still their support, for the invasion in a way that identifies them as an employee of the company for which I am GC. One post invariably leads to another. And another. But the actual business of the company for which I am GC is the manufacture and sale of widgets2. It is not the ongoing provision of a running political commentary – however just the cause. Employees should stick to activities directly related to or ancillary to the manufacture and sale of widgets – such as marketing our widgets or promoting them on social media. If they still want to become political commentators, maybe they should find another job.
Thank you for inviting me to comment on this fascinating topic.
Questions raised by the DGC’s comment
The DGC comes at the issue of social media postings from a sharply different angle to the previous Guest Contributor, the Ukrainian GC, Iryna Kravtsova.
It’s not intended as any disrespect to Iryna to refer to her comment in Issue #11 as a polemic. Iryna openly acknowledged that her position prior to the current war in Ukraine was that employees should not be allowed to write controversial postings on social media, in circumstances where they were writing as employees of the enterprise or readily identifiable as such. And yet she argued that employees should receive a free pass to post anything regarding the brutality of the war in Ukraine, given the horrors of the current conflict.
The thrust of Iryna’s piece was that the barbarity of the Ukraine war and the war crimes of Russia justify - perhaps even obligate - social media postings by employees. And that companies should allow this. And that GCs / CLOs should step back and neither police the postings nor in any way seek to regulate them.
In the questions I framed at the end of Iryna’s comments I raised a number of points I felt warranted further debate and discussion.
The DGC’s comment takes as its starting point that the war in Ukraine is terrible and that Russia deserves unequivocally to be condemned. But the comment articulates the futility of social media postings (to summarise crudely: it’s all been said by someone else, and no-one really listens anyway; another way of articulating this would be to say, as the influential American social commentator Jonathan Haidt does, that social media postings are ‘performative’3). The comment concludes that it is better to engage in social action than social media posting. And that insofar as employees want to engage in postings it is - and should be - fair game for the GC / CLO to police them.
Some important questions raised for me by the DGC’s comment are these:
1. I get that the DGC has a personal dislike of social media posting, and that he is, on his own admission ‘old school’. But aren’t his views on social media in fact ante-diluvian rather than merely old-fashioned, given the evolution of social media over the past 10-15 years? Isn’t the DGC in reality more dinosaur than, as he self-professes, ‘old school’?
2. Specifically is it remotely realistic in 20224 to hope / believe that employees might choose to refrain from using social media and choose to engage in social action when it comes to something like the war in Ukraine? Isn’t the reality that many employees want both to engage in social action and to engage via social media?
3. Isn’t the reality that many employees want to engage via social media precisely because it is impactful? Yes, posting on social media might be performative, but do we regularly tell performers to pack up and go home because they are wasting their time. Who has had the greater social influence, Princess Diana (who died 25 years ago) or Prince Charles? I would argue Princess Diana, the performance artist, rather than Prince Charles, the social activist. Princess Diana arguably changed the way British people engage with themselves and others emotionally, forever.
4. I also get that the business of the DGC’s company is not the provision of political commentary. And, for that matter, that the DGC’s business is, on one view, the provision of legal advice. But isn’t the reality that the role of the modern GC is much, much, wider than the provision of legal advice?
5. Isn’t the true role of the modern GC to help her business manage risk effectively? She is primarily charged with advising on legal risk – but the role goes way beyond that, particularly in a large and complex corporation. She must also understand risk more generally. And isn’t there a significant risk attached to shutting down or policing social media postings in a situation such as the Ukraine War where employees and the wider public feel genuine and justified outrage?
6. Isn’t there in fact a risk, as senior management at Norton Rose Fulbright discovered5 that you shut down employees’ postings at your peril?
7. Isn’t one of the key risks that the GC needs to weigh that in cancelling, or seeking to cancel, employees’ postings, the employer and the organisation might themselves become the story, and themselves be cancelled?
I very much hope that next week’s guest contributor will respond to some, or all, of these questions. I myself don’t know the answers, and look forward to hearing a well-reasoned analysis and to reading contributions from PC readers.
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.
Jonathan can be reached by email at email@example.com
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,
For readers of Practical Counsel unfamiliar with the English legal profession, there is a bipartite division of the profession between Solicitors and Barristers. In fact the distinction is not anything like as simple or clear-cut as it used to be , but Solicitors can be thought of as transactional lawyers (and when it comes to litigation the lawyer who prepares the case); Barristers are trial lawyers who also do some of the advisory work and advocacy at hearings. In-house lawyers in the UK are invariably Solicitors, hence my reference to a paper published by the English Law Society.
Readers should know that the business of the company of which I am GC isn’t actually the manufacture and sale of widgets. To protect my identity (see Jonathan’s introduction to this issue of Practical Counsel) I am obscuring the nature of the business for which I work – and for some reason, here in the UK, whenever we reference a business as doing something the nature of which is irrelevant, or which we want to disguise, we say that the business ‘manufactures widgets’. But to this day, I don’t know what a widget actually looks like!
He has written two very well-written comment pieces to this effect in the Atlantic. Both are well worth reading (See Social Media is Warping Democracy, Dec 2019; Why the Past 10 Years of American Life Have Been Uniquely Stupid, Apr 2022).
By way of example, according to Wikipedia’s article on Twitter, the first tweet was in 2006 – there were 100 million tweets per quarter by 2008 and more than 330 million active monthly users of Twitter by 2020.
When Norton Rose Fulbright (NRF) issued a firm wide ban on its lawyers commenting on sanctions imposed on Ukraine, there was widespread outrage, vented on social media platforms including LinkedIn. NRF’s senior management backed down on the ban very rapidly.