Additional reporting by Luke Dringoli and Jon Thomas.

We’ve all seen it before: Marketers create an innovative social media campaign only to have it squashed by the legal department into a bland, lifeless lump of the original idea. Sadly, many archaic legal departments are wary of social media at best and digitally illiterate at worst. Their fear of embracing these tools can be a barrier for brands that want to interact with their audiences in authentic, transparent and engaging ways. But that doesn’t mean brands shouldn’t sacrifice creativity (or throw out their old-school legal department) just yet.

The Brand Science Institute recently conducted a study of 563 marketers representing 52 brands in 12 European countries to better understand what goes wrong when a social media initiative is launched. They found that 76 percent of marketers feel that legal departments hinder new projects. We must draft a new set of rules to govern this broadening territory. The same regulations from years past simply do not apply anymore.

Unfortunately, there’s a great divide between real-world issues that legal departments face and what law schools are teaching (or rather not teaching about the impact of digital marketing and social media on corporate law). A new age of advertising requires a different kind of legal department: nimble enough to work in real time, privy to the ever-changing landscape and smart enough to know what’s appropriate in an arena unlike anything the brand has previously dealt with.

Living with Social Media

Social media is here to stay, whether legal likes it or not. Those that are too restrictive will ultimately hurt their brands. There will always be legal hurdles to jump when it comes to digital marketing, especially for more highly regulated industries like pharmaceuticals and alcohol. Stringent legal restrictions make it so brands in these markets are often unable to follow best practices (or in some cases are barred from engaging through social media at all). But even the most red-flagged industries are slowly beginning to embrace these platforms as valuable tools; just last week an industry group released its own pharma-specific best practices for social media and user-generated health and medical content.

However, when a company first jumps on the social media bandwagon, its first campaign is typically a test (one that’s very conservative and regulated). If it fails for whatever reason, the company’s more likely to kill the campaign and put in place overly restrictive guidelines for future initiatives rather than give it another chance with fewer restrictions. Many lawyers imagine worst-case scenarios and are concerned with mitigating risk rather than the opportunity to innovate.

This must change. And there’s evidence that legal departments are starting to get with the times. But the fact is, many in-house legal departments still have never made decisions about social media before, and their comfort level with it is as low as their understanding.

Insight from Adrian Dayton, Legal Marketing Expert

“What they want is a precedent,” says Adrian Dayton, a self-proclaimed “evangelist of social media for the legal profession”. “So if you want to try something new, you have to be able to show something analogous that another company did successfully, that they didn’t get in trouble for. If you can show someone else is doing this, and not getting killed for it, that’s a pretty good argument.”

As a non-practicing lawyer, Dayton trains others in his field on how to use social media to grow both their own businesses and the companies they work for. In his experience, most law schools are very behind in teaching digital marketing, but he expects that within the next two to three years the majority of them will finally add a social media component to the curriculum.

“As legal departments, their job is always to protect the company and make sure nobody does anything that’s going to harm or hurt the value of the business,” Dayton says. “But they really have a greater responsibility when it comes to social media. And while they’re always going to have the job to protect, they also need to empower their marketing department to use these things the right way.”

Dayton reiterates the learnings we’ve gleaned from dealing firsthand with the in-house councils of brands in industries from automotive to alcohol to pharma and more. It’s essential that brand marketers learn to work with the in-house legal council, and the best way to do that is by establishing a clear social media policy. Additionally, getting to know the people within the legal department, understanding their fears and addressing such fears from the get-go (rather than during final rounds of creative) are key.

Can’t We All Just Get Along?

It boils down to the need for collaboration between marketers and lawyers. There is no benefit to either party in a silo or adversarial approach. As legal departments become increasingly involved in social media campaigns (and maybe even sign up for personal accounts), it will become easier for brands to navigate this space agilely without the fear of stepping on a landmine.

When Chrysler came to Story Worldwide wanting to create a syndicated publishing model to captivate loyalists and newcomers alike, we were highly regulated as we developed brand blogs as well as the Dodge and Ram brands’ first forays into social media. However, quickly building trust gave us more freedom in our response work, and we created a hub where it was possible to cover relevant news in real time. In 2010, when Ram was named “Truck of the Year,” we gave online journalists access to the unfolding details and let them tweet questions. This real-time interaction between the brand and audience was only possible by developing a crisis-management system where inflammatory responses could be handled quickly via preapproved responses or forwarded to the proper client contacts if necessary.

With other brands we’ve shown that by leveraging preapproved responses for premeditated questions to increase response times on Facebook, we’ve been able to increase the amount of activity on the brand page fore more fluid conversations and lasting relationships. Some of our clients’ legal departments are already overbooked due to the volume of paid and owned content they must review—there’s just so much they can’t keep up. That’s why it’s vital to gain the trust of the brand manager and the legal staff for more flexibility to interact on behalf of the brand. Ideally, your social media manager will know the client’s product info and legal concerns so stone-cold that you create and phrase things in a way that legal doesn’t need to review the fast-paced social content.

Usually, it’s essential to get the legal department involved early on; leaving legal review until the final rounds of creative is recipe for disaster. In rare (and beloved) cases, social media managers are lucky enough to have a trusting client that agrees with creative without requiring legal approval beforehand. But more often than not, it’s possible to participate in this digital space only after you’ve earned a brand’s trust.

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