Choose Site


Tech & Sourcing @ Morgan Lewis


The stakes are higher than ever when it comes to your company’s online presence management (OPM), and you should be proactive in ensuring that your company is best positioned for success.

We are talking about total OPM. Yes, it is a real thing. The soaring growth of online media revenues (over 17%, recently), the sophistication of bad actors responsible for “mega-hacks,” and the ever-expanding social media market are but a few of the headlines that top the news on a daily basis.

Public interest is extremely high. As such, the risks and liabilities to your company are self-evident.

As a responsible lawyer (or, at least, someone interested enough in the law to read this blog), you should take a proactive approach to ensuring your organization is aligned with measures to both capitalize on the enormous opportunities presented by, as well as mitigate the risks associated with, managing your company’s total online presence.

So, where do you begin? What are the first steps? We recommend scheduling an internal discussion with your relevant stakeholders to take inventory of where you are with respect to your company’s OPM. You don’t need to involve outside counsel or be an expert in every nuance of the OPM space. Instead, the goal is to get a discussion between your business team and legal team about the structure and needs of your company. That is, the goal is to get the dialogue started internally so you have the information that you need to provide or to seek artful advice.

Here are the top three agenda items for your initial meeting:

1. Online Contracting Discussion—What agreements do you use, or should you use, on your website? Terms of service? Terms of use? Privacy policies? Codes of conduct? Foreign Corrupt Practices Act policies? Open-source policies? Once the inventory is completed, have a candid discussion with your business/marketing/OPM teams about (1) how each agreement is executed and used within the organization, (2) how updates are communicated, and (3) any pain points experienced by the business team. Special attention should be given to agreements that control services or products that produce revenue or that deal with the handling of important data or information. Understanding the total picture of your company’s online contracting structure allows you to identify risks and install protections to mitigate them.

2. Security Protocol Discussion—What are the processes in place to monitor and respond to potential security threats? What would your company do if it suspected a breach? How long would it react? What reporting systems are in place to alert responsible OPM team members of suspicious activities? Lawyers, like CEOs, can no longer assume that their company’s IT personnel handles these issues. By understanding the lay of the land, in-house lawyers and well-integrated outside counsel can better respond to emergency situations.

3. Data Leverage Discussion—What data is collected by your company’s internal tools? What data is collected by third-party tools and services? How is the data collected from the website (both personally identifiable and commercial) used by the company? Are there any synergies that can be gained by various business teams by gaining access to either of the above? Understanding what data is collected, especially commercial data such as user tendencies and product information, can assist lawyers in understanding the rights to negotiate when dealing with outside vendors and in drafting privacy policies.

As you can probably tell, the “discussions” approach will likely lead to many tangent discussions and identification of issues that you didn’t even realize existed in your organization. This is intentional.

In today’s online environment, you need to be proactive and agile to ensure that your company’s OPM is handled in a responsible, predictable, and measured manner. Having the discussions above will at least give you a starting point to demonstrate a more active approach and likely result in you being able to provide better and more business-focused counsel.