Lessons from the digital communications and PR industry

I was invited to attend a breakfast with Text 100's CEO, Aedhmar Hynes this last Friday, where Hynes first presented to a group of marketers and country heads of multinationals about how she sees social media fitting into digital communications and public relations generally. She also spoke about trends she has been monitoring.

Aedhmar Hynes speaking about digital communications from Paul Jacobson on Vimeo.

Hynes' presentation was focused on trends in the public relations and digital communications space. At the same time I noticed some interesting parallels with my work as a lawyer. Hynes pointed out that while advertising, marketing and PR firms are competing to "own" digital channels, their clients' customers don't think in the same fragmented terms the agencies do (for example, above the line, below the line and so on). Customers want to access services and buy products that appeal to them or are relevant to them and it is the agencies' job to convey information to the customers how to do that using the appropriate channel.

I recounted a story Shel Israel told me at the WTF Conference the other day about how the Columbian government has established a government community which citizens can approach with queries or concerns without necessarily needing to know which government department or sphere is the appropriate one. Instead citizens can apparently submit their requests to the community as a whole and the various departments and bodies that make up that community will route the requests to the appropriate body and ensure that feedback reaches the citizen. I don't know how effective the community is in addressing citizens' concerns and requests but the model sounds a lot like what agencies need to do for their clients and, ultimately, the customers.

I wrote about the parallels I saw in the legal industry last year in my post titled "Speaking plainly about what we do" and I believe this is one of the communications challenges facing lawyers and a frustration clients experience. Clients don't necessarily appreciate the distinctions between different legal categories and are often not equipped to categorise their requirements. Clients also run into difficulty when they attempt to categorise their requirements without some familiarity with the law because they often confuse categories. Clients shouldn't be expected to have a grasp of the legalities when briefing a lawyer. All they should be asked to do is state the facts, their desired outcome and collaborate with their lawyer in developing a solution (or at least determining the preferred solution) and working towards that solution. It seems the communications and PR industry is facing a similar challenge.

Another topic which Hynes mentioned is how companies are adopting policies to address how employees communicate issues concerning their employers, their employers' business or the industries they are involved in. These policies take the form of social media policies for the most part and are becoming increasingly important as platforms like Twitter, Facebook, blogs and an increasing number of similar platforms give individuals a substantial audience and increase companies' exposure to a variety of risks. My concern is that companies frequently don't appreciate the likelihood of these risks manifesting largely because we haven't seen any public examples of employees' unrestricted social media use causing tangible harm to their employers or even competitors. The typical corporate response to these risks is to restrict access to the Web. This isn't enough, though. These companies are not addressing the real issues, they are just shifting the problem off their networks and out of their sphere of influence. Instead what they should be doing is engaging with employees about social media use and how its mis-use could prejudice various stakeholders, including those companies themselves. Social media policies are one way to do this.

Although the Text 100 event was focused on PR and digital communications, I find trends in these industries to be very instructive when it comes to my work as a lawyer in what is increasingly a marketing, communications and branding space.

Are digital agencies ignoring legalities at their client's expense?

Digital agencies are expanding and innovating at a rapid pace to take advantage of the increasing demand for their services. This morning's news about the Brandsh, Cambrient and Stonewall+ merger to create Native is a pretty clear sign of the local digital agency ecosystem's development and perhaps even its maturation. It also reminds me that, in this push to serve and stimulate local business' demand for digital services, agencies may be neglecting the unpleasant legalities that impact on their campaigns, possibly at their clients' expense.

The social Web is an exciting space to work in and it changes pretty quickly. Campaigns designed to take advantage of its dynamics are often innovative and push the envelope both from a marketing and legal perspective. These campaigns often introduce novel legal issues which both underpin the campaigns themselves and must be sufficiently addressed or risk a wasted investment in the campaign's development, potential litigation for rights infringements and unwanted reputational harm.

So what should digital agencies be doing? My recommendation has always been that digital agencies incorporate a legal component into their campaign conception, planning, development and implementation. Think of it as a matter of prevention very possibly being better than the cure. Introducing a lawyer at an early stage and keeping that lawyer in the loop as the campaign is developed and implemented gives digital agencies the ability to identify and address any legal issues which may interfere with or even scuttle the campaign. Just as the agency's planning process is designed to lay a good foundation for the campaign's execution, incorporating legal advice from inception is intended to lay a sound legal foundation for the campaign. It is common sense from a legal perspective and while this approach is not a guarantee that legal challenges won't arise down the line, it is a way to reduce the likelihood of a sustainable claim arising.

Some agencies are very much aware of the need to cater for legalities and they develop their own frameworks to cater for possible legal issues. Unfortunately this DIY-style process often involves copying terms and conditions from other websites and developing frameworks based on other campaigns. The problem with this is that the "templates" used to develop the agency's legal framework are often poor copies of other templates or similarly drafted by well-meaning people who lack any meaningful legal training or competence. This is a recipe for disaster.

As self serving as this post sounds, the simple fact is that the legalities that impact on these remarkable campaigns are frequently not settled and require insight into both the law and the digital and social space these campaigns operate in to adequately anticipate and cater for possible challenges. DIY approaches or not taking adequate steps to cater for these legalities at all will only expose clients to a degree of risk they didn't anticipate and have negative consequences for the clients, their agencies and perceptions of these campaigns generally.

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Image credit: Richard Lovett, Creative Artists Agency by Robert Scoble, licensed CC BY 2.0