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Presenting at the 2010 Legal Faire

Posted Fri, 14/05/2010 - 08:56 by Paul

I am presenting at the 2010 Legal Faire being held in Sandton this morning. The Legal Faire is aimed at lawyers and that makes my presentation a little different. Instead of speaking to marketing, communications and general non-lawyers about social media trends and the law, I am going to be talking about how social media is challenging traditional legal paradigms. My topic is "Social media: Giving traditional legal paradigms the finger". Its probably a little ambitious on my part but it should be interesting to see what the response is. Here is an advance copy of my presentation slides if you are interested:

I am speaking today and tomorrow at 10:00. You'll need to register today if you want to attend, though.

Does your company have a social media policy?

Posted Mon, 18/01/2010 - 18:52 by Paul

The social Web can be a scary space for a company venturing out and adopting social media initiatives as part of their overall marketing strategies. Engaging with customers on social media platforms like Twitter and Facebook involves a loss of control over the message and the conversation.

Actually, I don't believe companies and brand owners have real control over their brands and the conversations springing up around their brands largely due to the distributed and viral nature of these platforms. What companies can attempt to do is engage with the people who are talking about them and their brands and participate in a brand and relationship building exercise.

Now this sounds like the sort of marketing speak you might expect from, well, marketing types but an awareness of these sorts of dynamics is essential if you have any hope of understanding and working with the legal issues that arise out of social media initiatives. One tool which a growing number of companies are using is a social media policy. This video interview with Adam Brown, Head Of Social Media at Coca-Cola, gives a pretty good overview of what a social media policy should address (thanks to my client who referred this video to me):

I really like Coca-Cola's approach to its social media policy. A big part of the policy is intended to establish a broad framework (in this case a set of principles and values) that governs how various stakeholders make use of social media based on their roles within the organisation. I firmly believe that educating employees and other stakeholders about the social Web and social media tools goes a long way to reducing exposure to liability.

Combine that with a clear and carefully thought out framework that caters for the multitude of regulatory and other relevant compliance considerations and you are better equipped to manage the uncertainties that remain part and parcel of social media marketing campaigns and initiatives. It is also a good idea to approach a social media policy from the right perspective as lawyers. Lawyers have a tendency to try and cover all the bases and create documents that are very specific and prescriptive. The challenge with social media policies is that their subject matter is virtually in a state of constant flux as new services emerge and new uses for existing services become popular. A policy that is too specific will quickly become irrelevant or just inappropriate.

In addition, the process of developing a social media policy should create a better awareness of what the various social media tools can help the company achieve, where the risk areas are and strategies to help manage them. A better awareness means a more informed decision making process and the comfort of have a plan to deal with issues which may pop up along the way.

Social media policies will become increasingly valuable as more businesses start using social media. Just remember that social media policies, perhaps more than any other policy document, should be reviewed regularly to ensure that they remain relevant, appropriate and effective.

The social Law Firm (otherwise known as Law Firm 2.0)

Posted Thu, 14/01/2010 - 11:09 by Paul

I've been a little obsessed with what a law firm should or could look like in this era of a social Web and a two-way flow of communication between providers and their clients becoming a norm. The social Web introduced the possibility of engaging a little differently with clients and I have been debating (mostly with myself - its been an interesting private conversation) what I could change in our firm to take advantage of this "social media mindset" in our day to day business.

It is pretty clear to me that the traditional legal services model is changing. At least the focus is shifting from documents back to raw expertise because that is ultimately what practicing law is about (at least in my humble experience of about a decade or so). There are a number of services popping up that sell legal documents to the person on the street for far less than what an attorney would charge to prepare them. While there is certainly still a market for more intricate documents due to the special requirements for those documents that a standard document off the shelf could never anticipate but I suspect even those documents could somehow find themselves on a shelf at CNA one day.

Short of a readily available and really effective artificial intelligence, lawyers' knowledge can't be replicated and put on a shelf just yet. Clients still need to brief attorneys to harness what is often highly specialized and carefully cultivated legal knowledge and that is where our value as a profession lies. But this isn't what I wanted to write about in this post. What I have been thinking about lately has more to do with how we work with our clients.

I made a silly decision the other day which had to do with applying aspects of our terms of appointment to a couple of our clients. I met with one of those clients soon after I sent off the email informing them about our decision. Our meeting was a regularly scheduled status meeting to discuss a number of files we are working on for his company (this client takes advantage of our retainer fee structure so its worthwhile for him to meet with us regularly to discuss developments and new work) but at the end of our discussion about ongoing work, we chatted about my email. The discussion became an invaluable feedback session where we debated a number of issues. What I realized as we debated these issues is that the decision I took was more in line with what I see as a traditional approach to client management on some level. It was ironic because my focus is on social media and a very different approach to customers by their providers.

A had a couple "a-ha" moments in the course of that meeting and it got me thinking about better ways to communicate with our clients. Another irony is that many of the lessons I learned yesterday morning were communicated to me years ago in my previous firm, albeit as advice to play a more political game with colleagues and clients to ensure their collegiality and patronage (I have a strong aversion to political games, I am far more in favour of authentic interaction with people and that is one of social media's appeals). What I realized is hardly revolutionary. Many of the ideas about client interaction go back generations to the days of small villages and marketplaces. They are also ideas which have been implemented by better lawyers than me as long as there have been lawyers and their clients. I thought I'd share some of these ideas anyway.

Image credit: 25/365 - Organization. by BLW Photography (licensed under a Creative Commons Attribution 2.0 license)

There seems to be a gulf between lawyers and their clients for the most part. Lawyers are these mystical creatures who employ strange language and machinations in an effort to achieve seemingly simple results. I often see it in the way that we lawyers speak and draft our documents and I've written about the importance of speaking plainly about what we do and the documents we create before. I think one of the reasons we perpetuate this is as a sort of defence against the unwashed masses (our clients). We raise these linguistic barriers to prevent them from trying to do what we do themselves. Lawyers also work to maintain the perception that we are vital to our clients (we are actually but not because we use complicated language - its because the world is becoming increasingly complex and regulated and you need lawyers to interpret and navigate those legal frameworks).

What is often missing is a realization that clients are not a threat but can be our best allies. As I listened to what my client was telling I realized that I was listening to a passionate evangelist for our retainer fee structure (he has often told me he doesn't understand why more clients don't take advantage of our retainer fee structure because of its cost saving alone), if not our firm and the way we do business.

Photo credit: Day 236: Attorney and client by madmolecule (licensed under a Creative Commons Attribution 2.0 license)

He also reminded me about the importance of personal contact with clients. I do much of my work remotely and it is easy to forget the tremendous value of personal contact with a client as opposed to an email. This isn't exactly a revelation, good business people all over the world and going back in time realized this and formed deep and meaningful relationships with their clients in the process.

This all got me thinking about how I can communicate better with our clients and making better decisions about our business that help build evangelists rather than focus too heavily on the business itself. I was reminded that spending more time on making sure we have happy clients will benefit our business along the way and perhaps in ways we haven't thought possible. I'd like to see that gulf between us and our clients shrink and even disappear. I want my clients to give us feedback and even tell us off when we do something to harm our relationship with them. No news is bad news for a social law firm based on meaningful relationships. It also seems to mean that face to face contact trumps phone contact which trumps email or IM contact when it comes to building and maintaining relationships.

Social media is about building relationships with customers using tools online. Running a social law firm is perhaps more about using those online tools to enhance relationships cultivated face to face, so to speak. Whatever it is, it is a work in progress and probably always will be.

Thinking critically about South Africa's communications industry

Posted Tue, 24/11/2009 - 21:42 by Paul

I was invited to attend the Neotel-Mail & Guardian Critical Thinking Forum at the Gordon Institute of Business Science this evening. The evening's theme was how to create a truly competitive telecommunications market. It proved to be a very interesting debate.

John Holdsworth, ECN Telecoms' CEO, feels the only real way to improve competition is through better regulation. The EC Act was intended to create a legal framework supported by regulations. Unfortunately none of the regulations needed to create a more competitive market have been drafted and passed yet. ICASA doesn't have a "bark, let alone a bite", he said. The new Department of Communications seems to be our best chance for an improved market. ICASA risks being revamped if it doesn't perform. What needs to be done is a chapter 10 study in terms of the EC Act. ICASA is composed of political appointees and not people who understand the industry.

Neotel - Mail & Guardian Critical Thinking Forum - 05

Denis Smit, from BMI-Tech, started by saying that the most important recent development is the introduction of political will in the new administration. We need a "general" to take on powerful vested interests and big corporates in the Communications industry. We have also seen the Competition Commission start to get real teeth at the same time that we see a growing belief that the current business environment is "too cozy" and needs to be shaken up a little. Smit says there is a very strong political will to make substantial changes to the communications industry. This political will is key to dealing with the ICASA bottleneck and these powerful vested interests and big corporates.

Mlindi Kgamedi General Manager in the Department of Communications' Director-General's office was up next. As much as the DOC wants to address the industry, it doesn't want to stifle competition. It is looking at the necessary resources for bodies like ICASA which will be coupled with new levels of accountability and responsibility to ensure performance. In response to Aki's question about whether ICASA needs more money, he said money isn't the only issue. He went further and said that if ICASA could present a compelling business plan, money wouldn't be an issue.

Zolisa Masiza from MTN was previously an ICASA councillor (that elicited a chuckle from the audience). I didn't make out much aside from comments about commercial incentives for MTN to invest in a more developed infrastructure.

Neotel - Mail & Guardian Critical Thinking Forum - 07

Angus Hay differed from Masiza and said we are beginning to see real infrastructure competition starting with international fibre becoming available and competition for international capacity leading to a drop of pricing (80% from about 2 years ago). Neotel sells on the SAT3 and Seacom cable and finds there is real competition in the market and the prices available are substantially lower than they were a few years ago. There are currently 2 national networks (Telkom and Infraco with other networks collaborating on a 3rd network) and the area where there hasn't been much movement is the local loop which Hay says is a big challenge. Networks find that competition has driven prices down to a point where there is little return. The networks need incentive to build local loop links.

Voice termination rates on mobile networks amount to a "natural monopoly" and active intervention is required here. One example of this is the recent interconnect rates intervention. We also need intervention on issues like geographical number portability, local loop unbundling and more. Neotel has spent a "couple billion" on infrastructure. Its budget for infrastructure is around R10bn.

Masiza responded by saying there is little incentive to build out capacity between national, metro and local network layers. He sees national distance and metro areas as critical but there isn't enough capacity to support investments to beef up infrastructure.

Holdsworth doesn't see any real infrastructure competition going forward. We are not going to see another Telkom. What we need is services competition. Telkom has the national copper/fibre network and Vodacom has a massive mobile network. Major networks must be required to share their infrastructures at reasonable rates. Telkom "cooks the food and you have to eat it". Telkom has no need to innovate on its network so we are stuck with 384kbps/512kbps etc. Instead, if Telkom was forced to share its infrastructure, providers could take advantage of aspects like the local loop to provide faster ADSL 2+, for example.

Smit pointed out that millions of South Africans risk never accessing broadband and this is unacceptable politically.

Hay said that unbundling the local loop is not a panacea. Only around 24% of SA households have a landline. Wireless is increasingly important with 96%-97% of South Africans estimated to be covered by some wireless network. We need a combination of wired and wireless networks to give South Africans better access to communications networks.

Smit raised a concern about current legislation and how portions of it are badly worded. Legal processes are slowing ICASA down. Aki suggested to Denis that it may be time to wipe the slate clean with ICASA and start again. Kgamedi was reluctant to take a stance against ICASA because he sees it as a valuable tool which has positive accomplishments. The DOC is looking at amending current legislation like the ECA and the ICASA Act. Masiza pointed out that ICASA had little time to reorganise itself when the framework shifted to the ECA. It really required far more time to plan for the shift and it didn't have that time.

ICASA was given a directive to address the local loop in 2007 and hasn't implemented this directive (together with many others). It sounds like Masiza is saying that a balance needs to be struck between managing ICASA better and not interfering unduly in its processes. Holdsworth pointed out that ICASA could take advantage of the courts where it has good arguments. ICASA needs to grow a backbone and take on the bigger players. Smit reminded the audience that the government is still a major shareholder in Telkom which stands to lose the most from local loop unbundling. This places the government in a very difficult position because its goals to cultivate a more competitive environment and maximise its Telkom interest are incompatible. ICASA runs scared because it keeps getting beaten in the legal system because it is outgunned and its opponents keep dragging ICASA through a sluggish court system.

Neotel - Mail & Guardian Critical Thinking Forum - 09

An audience member painted a picture of a regulatory system which has a very shaky and problematic foundation beset with conflicts of interest, inadequate regulatory frameworks and powerful and conflicting vested interests. Neotel, as a new entrant to the market, has a degree of uncertainty when dealing with ICASA. That being said, ICASA's own framework is problematic and needs to be clarified and beefed up to truly empower ICASA as a regulator.

Holdsworth and Smit pointed out that Telkom is recognising that its wholesale business is going to grow in the coming years as its retail business begins to shrink. Aki raised the spectre of Telkom collapsing as the local loop is unbundled but Holdsworth stated that Telkom really has a world class network and implied it would find itself becoming more of a wholesale provider than a retail provider.

Hay raised the issue of spectrum and said spectrum has real limitations and there is no long term planning for spectrum beyond the next decade or two. What we sorely need is a better sense of where South Africa is going and what it needs.

"Deny, defend, delay" is Telkom's, Vodacom's and MTN's strategy, said Holdsworth. Telkom's results show the impact of VOIP services and other innovations on Telkom's business model.

The consensus is that the Minister is proving himself to be a breath of fresh air in the South African communications industry. We seem to be on the right track from a political and policy perspective. It comes down to ICASA to regulate the industry. It is also important to have better coordination in governing structures to better implement government's policy directives. That being said, the politicians also appointed the ICASA board but it does sound like the new administration is going to hold ICASA to account for its performance.

Holdsworth pointed out that it costs ECN three quarters of a cent to route a call from Joburg to Cape Town over Telkom's network. ECN hands over to MTN/Vodacom/etc which charges ECN R1,25 and the customer R2,00. Very telling!

I had an opportunity to chat with Mlindi Kgamedi after the debate. I mentioned to him Finland's recent move to give all citizens the right to access to broadband. I have been a believer in a similar right in South Africa for several years. He commented that this is something the Department of Communications is working towards and that is terrific news for South Africa!

Neotel - Mail & Guardian Critical Thinking Forum - 10