Insourcing or outsourcing social media customer services: Do you have the legal expertise to keep it in-house?

Social media has become one of the key methods through which a brand can engage with its customers. As use of social media platforms has grown and appetite for an instant resolution to queries has increased on the part of customers, brands are increasingly under pressure to provide customer services functions via social.

As a result of this, brands are now faced with a choice as to whether to retain social media customer services functions in-house, or whether to outsource this aspect of customer engagement to a third party agency.

Some of my fellow DMA Social Media Council members have recently written articles on things to consider when deciding whether to outsource customer services and whether agencies can fully understand a brand's tone of voice and behaviour. Different brands will adopt different approaches depending on the nature of their business. But one thing that will need to be kept in mind is that social media posts, even those in response to a customer query, could well be deemed marketing, particularly if they contain anything of a promotional nature.

A response on social media to a disgruntled customer could conceivably avoid the remit of legal and regulatory restrictions if it does not contain content which is of a marketing nature and/or if it is private correspondence that falls outside the scope of the CAP Code and other advertising regulation. But if a response is made in a public forum (e.g. on a brand's Facebook Page or via a Twitter post) and it promotes products or services offered by the brand, there is a good chance that legal and regulatory considerations will come into play. As such, when deciding whether to retain or outsource social media customer services, though will need to be given as to who takes on responsibility for ensuring legal compliance.

What are the risks?

The regulatory risk involved in publicly posting a social media response to a customer will depend on a number of factors, including:

• the industry within which the brand operates – certain industries, such as pharmaceuticals or financial services, are much more heavily regulated than others and marketing messages might need certain prescribed disclosures or small print;
• whether the responses are likely to contain a lot of promotional material about products and services, as opposed to simply trying to resolve a customer's issue – for instance, certain types of sales and pricing claims bring with them rules about not misleading customers and being able to substantiate the assertions being made; and
• the tone of voice and additional materials used by the brand in its responses – playful responses which, for instance, reference celebrities or make use of existing artwork could bring into play privacy or intellectual property considerations.

You will need to consider whether the type of social media messages that you will be sending could fall within the remit of advertising regulation and the level of risk involved in the types of responses being sent. If legal considerations will apply, you will need to consider if you have the relevant legal resource to ensure that a framework is in place to keep responses legally compliant.

Do you have the resource and expertise?

Bigger brands with fully-fledged in-house legal teams may be better placed to implement response templates and legal escalation processes to ensure that all messaging complies with applicable regulations and codes (which could include the CAP Code, the Consumer Protection from Unfair Trading Regulations 2008, the Business Protection from Misleading Marketing Regulations 2008 and any industry-specific rules on marketing). This may be one of a number of reasons to keep customer services responses on social media in-house.

By contrast, smaller brands with less legal resource may consider other options. If a business is keen to retain full control of its customer services function, it could consider engaging an external law firm to help create set responses that fit in with a brand's tone, while ensuring legal and regulatory compliance. Alternatively, not having the expertise to legally vet responses could be a reason to outsource the whole customer services function to an agency, and to place responsibility for legal compliance with the chosen agency.

The above considerations regarding expertise and allocation of responsibility for legal review do not just apply to customer services. The same considerations will need to be taken into account when deciding whether to outsource responsibility for social media engagement in the context of both content creation and online community. The DMA Social Media Council will be publishing further insights into these aspects of customer engagement over the next few weeks and in my next legal article, I'll be looking at the things you should keep in mind when negotiating a contract between a brand and an agency for the outsourcing of social engagement.

Written by Ben Dunham, DMA Social Media Council

Contents:

1. To insource, outsource or a bit of both?
2. Should you manage customer service through social media in-house, externally or through a combination of both?
3. Can an agency ever really GET my brand as well as me?
4. Insourcing or outsourcing social media customer services: Do you have the legal expertise to keep it in-house?
5. Should you outsource the evaluation of your paid social content?
6. Should a brand keep content production in house, outsource or hybrid the model for optimised customer engagement?
7. What skills are needed to create valuable content for your brand?
8. In-house or outsource: How does a brand decide the best way to grow its community with paid media?
9. Social Media Community Management - Outsource to Agency or keep in-house?