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March 23, 2008

Ouch. I've been called out as a social media fear monger

I feel like such a hypocrite. Just days after saying I'm boarding the social media bus and not looking back, I looked back. I knew I was doing it as I typed that post, I published it anyway, and David Gammel called me on it. I do think it's important for people to be aware of the Catch 22, but I didn't provide the proper context. Posts like that one cause people to fear social media, and that's not what I want.

In his post, David takes up a point I almost blogged about within that post, but decided not to because I couldn't really back up the assertions. Lisa Junker, in a comment to David's post, actually drives the point home most effectively by saying...

It seems to me that some of the concern about legal risks involved in social media is like being concerned about your airplane crashing (and I say this as a very nervous flyer). The fear isn’t based on how likely the event is to occur, it’s based on the severity of the consequences if it did happen … so the fact that such a catastrophic event is even slightly possible is enough to create a disproportionate amount of concern.
I almost posted a similar line of logic with my last post, but I decided not to because I didn't have the facts and figures to back up my position. I regret it now.

Lisa and David are right. So in an effort to save face, here's my take (REALTOR association execs be advised, you'll probably see this differently, since REALTOR associations are constantly being sued) (again, I have no facts and figures to base this on, only my observations, whatever their worth):

Lawsuits against associations for anti-competitive practices are pretty rare. I know and frequently talk to a lot of association executives, and (outside of the REALTOR organizations and the required CAE reading) I've never, ever heard of an association getting sued for anti-competitive business practices. I suppose there are many reasons for the dearth of cases, but a contributing factor has to be that most associations have learned how to navigate their boats around the anti-trust rocks. My guess is that ASAE has scared the fear of FTC into them through the CAE program (they did it to me!). Anti-trust is the third rail of the association industry and any trained association professional knows how to protect against it, how to identify it, and how to shut it down. My experience is that associations have much greater legal risks in areas like taxation and employment law.

So is there an anti-trust Catch 22 in association social media? Most likely. Is it probable that you'll find yourself needing to take action in that context? Not in my opinion.

Take this advice at your discretion, but consider the source: A hypocritical, non-lawyer blogger.

Tagged: ; ; ; ; ;

6 comments:

David Gammel said...

You, sir, are no hypocrite.

I'm not saying there are no risks to be managed. But they are manageable.

ljunker said...

You're definitely not a hypocrite! You're flexible and open enough to learn new things, that's all.

And for what it's worth, just because antitrust lawsuits are rare, it doesn't mean we shouldn't be concerned about that risk. It's like you said (great quote, by the way)--they're the "third rail" of the association industry. I think the concern over the risk is just somewhat exaggerated due to the severity of the penalties if you did lose an antitrust lawsuit ... and, unlike taxation and employment law risks, we don't necessarily have a great handle on what we need to do to mitigate our risks. (Jeff De Cagna also points this out in a comment to David Gammel's post.)

In employment law, for instance, having a detailed written record of steps taken before firing a problem employee can shield you from a lot of risks. To echo Jeff, I think the answer to "what shields you from legal risk in your association's social media outlets?" hasn't been fully developed yet, which increases people's concern over the risks.

Matt Baehr said...

I honestly think that the fear doesn't lie within anti-trust. Those things are usually easy to find and take down, or you can usually see them starting to brew. I think much of the fear lies in slander, defamation and the flaming. A member may slander another member who might never rejoin the association, or sue the association for providing the platform.

Ann said...

LOL. Association politics are like sausages...you really don't want to watch how decisions are made and what's thrown into the mix.

BTW the driver for the professional societies' anti-trust fears is price fixing, not monopoly.

Twenty years after settling anti-trust allegations, an AIA chapter president published a local column advocating a professional fee standard. The clearn-up cost the AIA more than a million dollars.

Cheers
Ann O

Mike Mason said...

It's not about "fear" of social media -- it's about being responsible and mitigating risk.

Ben Martin, CAE said...

@Ann: Good clarifying point. See? Antitrust has been so beaten into me that it has become synonymous with price fixing.

@Mike: Unfortunately, I think some feel the risk is too great or unmanageable and really do fear social media.