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What is a 'Digital Crisis' and how do you prevent one?

‘Going Viral’ is a marketing dream, but it can spiral into a PR nightmare. A rumor, a false accusation or negative review can catch wind on social media and sail far from your grasp. The fall out can impact your P&L and disrupt your organization from the board level and down. When this occurs, who’s accountable and what recourse do you have? This is the world of Digital Risk. We recently sat down with Desiree Moore, Partner at K&L Gates and co-founder of the firm’s Digital Crisis Planning & Response practice, to explore these questions, and more.


What led to the rise of K&L Gates Digital Crisis Planning & Response Practice?

In 2012, I wrote the book ‘Thrive: A New Lawyer’s Guide to Law Firm Practice’. As I began to market the book and establish myself on social media, an idea ‘clicked’--I realized that law firms would need social media-focused practices as corporations and individuals began to leverage social media for business. I approached the firm’s global managing partner sometime later and proposed that K&L Gates start a social media practice.


Almost as soon as the social media practice launched, clients came with inquiries not only about social media, but about digital risk. My partner Elisa D’Amico and I decided that we should expand our focus, and created a more holistic client solution, Digital Crisis Planning & Response.


What is a digital crisis?

Today, and in recent years, having a ‘digital identity’ is a matter of fact.


Many businesses and individuals are prolific users of social media and other digital platforms. However, even if you are a business owner that has never connected to the Internet, your customers, clients, and business partners do. Websites like Glassdoor and Facebook and others will automatically create company pages (for example, if a former or existing employee writes about the company, or when their algorithms pick up that someone has visited a business that isn’t in their network). Therefore, digital risk is also a matter of fact.


Every person and every company has a ‘digital profile’. The only difference is that some choose to manage that profile and others do not.


A digital crisis is a crisis that occurs online or offline but that is discussed, disseminated, or otherwise transmitted via digital means, or via technology. A digital crisis is indiscriminate in terms of industry or size and can impact an individual just as much as a Fortune 50 company.

Often, a digital crisis is related to negative news about a company or executive that goes viral. Data breaches and ransomware are also examples of digital crisis.


Are your clients typically proactive or reactive in their preparation and response to a Digital Crisis?

Generally speaking, clients are reactive. This makes sense in light of the trajectory of digital platforms for business. Specifically, in recent years, businesses saw that their clients began to move on to digital and social platforms, and they naturally joined in as well to ensure they were a part of the conversation. There is a low barrier to entry on virtually all digital platforms, so it is not intuitive that a business or individual would seek out the advice of a lawyer before creating an account. As a result, most businesses began to cultivate a digital identity without considering the risks.


As we built our digital practice, first-time clients were typically reactive. Something bad had happened - a disgruntled employee misappropriated passwords or other trade secrets; there was a data-breach; some form of negative press had gone viral, etc.- and the client was looking for a legal course of action to protect their interests and hold others accountable.

In reactive circumstances, we move quickly to assess the situation and plot a course of action. In cases where there is an identifiable bad actor, for example, we will issue a cease and desist letter within 24 hours, and prepare a complaint as quickly as we need to if the behavior does not cease. We carefully craft our communications so that if they are leaked digitally, as they often are in digital crises situations, only the message we want communicated gets out.

When clients are proactive, we are able to put measures in place from the outset that protect against digital crises, and that mobilize teams instantly in the event of a crisis.


What does a ‘crisis’ typically look like/ What’s a ‘worst case scenario’?

A crisis involves the spread of news or negative information in some fashion. For example, you can have a clandestine breach in your data, but you will need to communicate that incident to those who have been compromised (at a minimum - and potentially others by law). If not handled correctly, this can result in loss of clients and critical relationships.

Other crises center one negative information (true or false) that is spread virally on the Internet and showing signs of gaining traction. In this scenario, companies without a plan in place are potentially going to react in a way that exacerbates the situation.


Reactions without a plan often trigger viral responses because they acknowledge a problem.


Companies and individuals often run up against two scenarios. Either they don’t respond at all to a crisis that requires a response, which creates its own crisis, including the spread of speculative information (on top of the negative information), or they respond without thinking through the consequences of the response, thereby legitimizing or highlighting an event that may not have been a crisis at all on its own.


Different businesses will have different levels of tolerance for negative exposure on digital platforms. When our clients are being pro-active, the first very first thing we advise them to do is to determine what constitutes a crisis. Once this is defined, we can track the narrative and determine what level of traction i is gaining, if any, and what kind of response is required, if any.


If a story defam