Marketers who improperly use company names could face criminal and civil penalties

Anyone running a social media profile on a client's behalf should be very careful when tweeting or posting on the client's behalf. The consequences of careless references to or variations of a company's name could be severe under certain understated provisions of the new Companies Act.

The Companies Act's provisions

Section 32 of the Companies Act deals with "[u]se of company name and registration number" and subsections 3 and 5 are the clauses social media practitioners should be aware of:

(3) A person must not—

(a) use the name or registration number of a company in a manner likely to convey an impression that the person is acting or communicating on behalf of that company, unless the company has authorised that person to do so; or
(b) use a form of name for any purpose if, in the circumstances, the use of that form of name is likely to convey a false impression that the name is the name of a company.

(4) …
(5) Contravention of subsection (1), (2), (3) or (4) is an offence.

The term "person" in the Companies Act "includes a juristic person". In our law there are two basic types of "persons". We have natural persons which are human beings and juristic persons which are corporate entities like companies and close corporations.

What this means is that any person who uses a company's name that suggests that the person is communicating on the company's behalf and isn't actually authorised to do that will be committing an offence under the Companies Act. That is fairly straightforward but subsection 3(b) is not nearly as clear although can be even more problematic for careless marketers. It uses the phrase "form of name" which is only used in this sub-section of the Act. The word "form" is defined fairly extensively in the Oxford Dictionary of English, and includes the following definitions:

• the visible shape or configuration of something
• a particular way in which a thing exists or appears
• any of the ways in which a word may be spelled, pronounced, or inflected

It appears that "form of name" includes both variations of the company name (for example, "Pick 'n Pay" as a commonly used variation of Pick n Pay Stores Limited or Pick n Pay Holdings Limited or "Woolies" as a common reference to Woolworths (Proprietary) Limited or Woolworths Holdings Limited – assuming you know which one you are referring to) and it may even include variations of the company's trade marks, such as logos, and other representations of the company's name. Assuming this is how the clause will be interpreted, subsection 3(b) criminalises a variation of a company's name which conveys "a false impression" that the variation "is the name of a company". The idea here may be to ensure that company's names and branding is accurately and reliably conveyed to the public and the risk of confusion minimised.

Section 218 deals with "[c]ivil actions" (as opposed to the criminal offences that a violation of section 32 would constitute) and subsections 218(2) and (3) state the following:

(2) Any person who contravenes any provision of this Act is liable to any other person for any loss or damage suffered by that person as a result of that contravention.
(3) The provisions of this section do not affect the right to any remedy that a person may otherwise have.

These two subsections in section 218 introduce specific liability for any "loss or damage" caused by "[a]ny person" and suffered by "any other person" and doesn't exclude whatever other remedies "a person" may have in law. This clause's scope is pretty broad, may be open to constitutional scrutiny, and opens the door to civil liability in the form of a financial sanction flowing from the contravention of the Companies Act in addition to whatever other remedies may be available.

What does this mean for marketers?

Drawing all of this together, a marketer or other social media practitioner could find him or herself being charged with a criminal offence and sued for monetary damages for either using a company's name in such a way as to falsely suggest the marketer or practitioner is authorised to represent the company concerned or where the marketer or practitioner uses a "form" of a company's name that is not the company's actual name and, instead, falsely creates the impression that it is. This sort of issue could easily arise in the manner in which a brand's Twitter or Facebook pages are operated (both how they are set up and presented to the public, fans and followers as well as what is published in those streams) as well as out of a marketer's or practitioner's efforts to promote the brand.

One specific challenge tweeting under a brand's name without drawing a distinction between the person doing the tweeting and the brand's official communications where the tweeter posts updates that don't fall within the tweeter's mandate (for example, a personal comment that isn't sanctioned by the company). Another is using an unauthorised "form" of a company's name in a Facebook Page update or blog post, for example. These sorts of mistakes can be made but they potentially carry severe consequences (an offence could mean a fine or imprisonment not exceeding 12 months, or both). Given the definition of "person", agencies that operate social media profiles can also find themselves in trouble.

Managing these risks

Managing these risks and still diligently promoting a brand can be accomplished. Agencies must have clearly defined roles and parameters and these must be effectively communicated to their staff and compliance with these restraints must monitored. This means being specific with clients in agreements and communications regarding the agency's use of a client's brand and the manner in which the agency's staff will communicate with fans and followers on the client's behalf. Agency staff should also draw clear distinctions between posts intended to be associated with the client and its brand, on the one hand, and posts which are not. There should be no confusion between a company or its brand, on one hand, and the people promoting it behind the scenes.

Appropriate risk management steps should be taken from the start and maintained on an ongoing basis, taking into account changing circumstances, instructions and feedback received from the public, the client and other relevant stakeholders. Not making the effort to better manage these risks could result in more serious consequences down the line than the upfront cost of developing and implementing the appropriate framework.

When ex-employees take your Twitter followers away from you

What happens when an employee who controls your company's Twitter account leaves for a competitor, taking the Twitter account with him? This question seems to come up now and then in US employment law cases and the latest is the case of gadget blog PhoneDog and its erstwhile employee, Noah Kravitz. According to Ars Technica's post "Who gets custody of Twitter when an employee quits?":

In this case, Noah Kravitz worked for PhoneDog, which is an "interactive mobile news and reviews web resource." Kravitz worked as a reviewer and video blogger. He used the "@PhoneDog_Noah" Twitter account, and it amassed approximately 17,000 followers. When he left, PhoneDog asked for the account "back" but he demurred, instead changing the account handle from @PhoneDog_Noah to "@noahkravitz". PhoneDog sued, asserting claims for misappropriation of trade secrets, interference with economic advantage; and conversion.

An employee leaving his employment and heading for the competition (or even setting up a competing business of his own) could give rise to a number unlawful competition claims. The primary catalyst for these claims would be the relationships that are formed or strengthened with customers or potential customers using social media. With respect to employees and contractual non-solicitation clauses, we saw some of this a couple years ago on LinkedIn. The PhoneDog case is the latest of a string of similar cases that includes the Rick Sanchez (formerly of CNN) case. The claim categories in the PhoneDog case are likely to be fairly different to the sorts of allegations we would see in a comparable case here in South Africa.

Before getting into possible causes of action, its important to take note that the risk of an employee leaving a company with the company's Twitter account is not necessarily a minor matter. Sure a company can create a new Twitter profile and require the ex-employee to relinquish the account's name due, in part, to trade mark considerations but what happens if the ex-employee does that and keeps communicating with all those followers? The profile's name isn't the important aspect at all, its the relationships the follower numbers represent.

Meaningful connections on the social Web are built on reputation and relationships consumers feel they are forming with brands. In the right circumstances consumers may come to form those relationships with the people behind the brands, particularly if they are known. In the PhoneDog and Rick Sanchez examples, Twitter followers formed relationships of a sort with Noah Kravitz and Rick Sanchez, respectively. The connections to the PhoneDog and CNN brands, respectively, were secondary and when these two men parted ways with their former employers and their followers remained with them, that reinforced those relationships.

Imagine a somewhat more benign and yet equally problematic scenario: you employed a man as your company's evangelist and he developed a pretty popular following based on his personality, drive and charisma. Imagine he leaves your company and goes to work somewhere else, taking his Twitter followers with him. Imagine those followers are introduced to another company, another brand, another set of products and services before he leaves that company and moved to another, and then another. His popularity only grows over time and his following becomes more and more valuable along the way. Aside from any suggestion of impropriety, this pretty much describes Robert Scoble, a well known and authoritative tech pundit.

In Scoble's case there is no suggestion that he acted unlawfully but his case is a better example of how portable relationships can be on the social Web. When you add a competitive dimension to the mix you have a recipe for real harm to a company's relationships with its customers, its brand and possibly even its competitive advantage. In unlawful competition terms, you have the risk that an employee could use the reputation he developed with a company's customers as a springboard for his competing business or to help give a competitor an undeserved boost. In the PhoneDog case, PhoneDog unsuccessfully argued that the Twitter followers Kravitz took with him was a trade secret. That argument probably wouldn't fly in South Africa either. Twitter followers are typically public and there is no secrecy there. Another factor which could form the basis of a claim is the goodwill a company may have established with its customers through social media and which would be interfered with when the ex-employee moves to a competitor.

There is certainly tremendous value in using social media to cultivate and develop relationships with customers but companies that fail to anticipate individual employees (or even groups of employees) migrating those customers to competing businesses, and catering for that, are at risk.

The trouble with online defamation

I frequently receive calls or emails from people asking for help with online defamation, usually on Facebook. The people who contact me are often at their wits' end and want to sue the people defaming them, thinking that will fix the problem. Unfortunately, that can often make it worse. The challenge with online defamation is that the usual legal approach can aggravate the harm being suffered and the better course of action doesn't necessarily fix anything. Dealing with online defamation is often a matter of damage control and this is primarily due to the social Web's nature.

Social networks like Facebook, Twitter and Google+ empower their users to express themselves on a scale typically not seen before the Web became social. This has shifted power dynamics in profound ways. We recently saw how Facebook and Twitter played important roles in the Arab Spring in Egypt and other countries in the Middle East. It is important that the social Web remain as free and accessible as possible because a free social Web is a powerful tool for freedom generally. At the same time, the social Web, like most tools, has darker applications and defamation online is one of those applications.

Of course, that is an oversimplification. A form of expression can be defamatory and be justifiable and permissible if, on its face, it harms its target's reputation and yet its publication serves a legitimate purpose. When people contact me about defamation online (the term they often use is "slander"), the published material is often not justifiable and is motivated by malice.

The typical legal response to this sort of defamatory material (or any defamatory material, for that matter) is to demand its removal and that the publisher take some form of remedial action to address the harm caused. The problem is that adopting this approach to defamatory statements or material published online can aggravate the situation far more than the person harmed could have anticipated.

Two case studies illustrate this phenomenon well. The first and older case study involves the performer, Barbara Streisand, and her efforts to stop photographs of her coastal home from being published after it was photographed during a coastal survey. Despite her most efforts, photographs of her house were published online, repeatedly. This case study gave the phenomenon its name: the Streisand Effect. A number of subsequent stories validated and reinforced the Streisand Effect including the 2007 Digg-AACS Encryption Key controversy and, more recently, the 2011 Ryan Giggs-UK "Superinjunction" controversy. Both of these more recent case studies illustrate the challenge of adopting a classic legal approach to a social Web problem. In the 2007 Digg controversy, Toshiba's attorney at the time, Michael Avery, summed up this challenge as follows:

If you try to stick up for what you have a legal right to do, and you're somewhat worse off because of it, that's an interesting concept.

When it comes to defamation online, particularly on social networks like Facebook, defamatory statements' harmful impact may only be exacerbated by adopting a traditional legal approach. This isn't to say that the defamation isn't unjustifiable, harmful and actionable but the very real possibility that addressing this misconduct like a conventional legal problem could drastically inflame the situation, and the resulting harm, is an important consideration when planning a response. What is required is a more flexible approach having regard to the specific dynamics involved as well as the platform used. There is no single approach which will be appropriate for all cases.

So what can be done? From an organizational perspective, implementing an Online Reputation Management solution may make a lot of sense. Companies may be defamed too and this defamation frequently results in reputational harm. Simply monitoring keywords and phrases is part of the process which should also include a more detailed strategic plan for dealing with negative and positive sentiment as well as legal input throughout the process to anticipate and cater for potential legal issue which may arise. From an individual perspective, responses may include reporting abuse with the platform's proprietor; laying criminal charges; engaging directly; not taking any active steps for the time being and, when left with little choice, having an appropriately worded demand letter prepared and sent to the culprits.

There are other challenges facing online defamation cases which can be similarly difficult to overcome. One concern is that defamers may be publishing under a pseudonym and are effectively anonymous. This presents a fundamental difficulty because you can only really take action against a known party and if the culprit has used pseudonymous handles and names for his or her profiles, email addresses and other identifiers, suing will be a practical impossibility. Another, very real, concern is the cost of legal action relative to the harm suffered. In the case of individuals, litigation costs are frequently prohibitive; potential damages generally less than they may expect and costs recoveries are cold comfort after a protracted and expensive campaign. Costs are less of an issue for companies which tend to be more able to afford these costs but the challenge here is that taking action may lead to a disproportionate increase in the harm suffered making legal action more of a "principle" based decision which is rarely the ideal motivation for legal action.

A lawyer's role in these sorts of case is less to rush in, guns blazing, and more to get a handle on the situation and help shape responses while anticipating the worst and preparing as much as is possible for a formal dispute. In between there is usually considerable scope for a multi-faceted approach to defamation and the resulting reputational harm where lawyers still play a role. They're just not necessarily the cavalry anymore.

Regulators: Hands off the social Web

Two recent events have sparked debates about whether the social Web should be censored: the first is the recent civil unrest in London and the second is a recent report in the Sunday Times about a racist calling himself "Eugene Terrorblanche" publishing a deeply disturbing photo on Facebook (it turns out this is an old story but relevant nonetheless).

When faced with these sorts of social network abuses, its sometimes tempting to ask whether these social services are somehow inherently bad for allowing themselves to be abused like this. The short answer is "no" and that these services typically take action against the offending material or account where the use falls foul of their terms of service or is otherwise illegal. Facebook's Statement of Rights and Responsibilities contain the following use restrictions:

Safety

We do our best to keep Facebook safe, but we cannot guarantee it. We need your help to do that, which includes the following commitments:

1. You will not send or otherwise post unauthorized commercial communications (such as spam) on Facebook.
2. You will not collect users' content or information, or otherwise access Facebook, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our permission.
3. You will not engage in unlawful multi-level marketing, such as a pyramid scheme, on Facebook.
4. You will not upload viruses or other malicious code.
5. You will not solicit login information or access an account belonging to someone else.
6. You will not bully, intimidate, or harass any user.
7. You will not post content that: is hateful, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.
8. You will not develop or operate a third-party application containing alcohol-related or other mature content (including advertisements) without appropriate age-based restrictions.
9. You will follow our Promotions Guidelines and all applicable laws if you publicize or offer any contest, giveaway, or sweepstakes (“promotion”) on Facebook.
10. You will not use Facebook to do anything unlawful, misleading, malicious, or discriminatory.
11. You will not do anything that could disable, overburden, or impair the proper working of Facebook, such as a denial of service attack.
12. You will not facilitate or encourage any violations of this Statement.
    

Twitter's Rules contain the following restrictions:

Content Boundaries and Use of Twitter

In order to provide the Twitter service and the ability to communicate and stay connected with others, there are some limitations on the type of content that can be published with Twitter. These limitations comply with legal requirements and make Twitter a better experience for all. We may need to change these rules from time to time and reserve the right to do so. Please check back here to see the latest.

• Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others
• Trademark: We reserve the right to reclaim user names on behalf of businesses or individuals that hold legal claim or trademark on those user names. Accounts using business names and/or logos to mislead others will be permanently suspended.
• Privacy: You may not publish or post other people's private and confidential information, such as credit card numbers, street address or Social Security/National Identity numbers, without their express authorization and permission.
• Violence and Threats: You may not publish or post direct, specific threats of violence against others.
• Copyright: We will respond to clear and complete notices of alleged copyright infringement. Our copyright procedures are set forth in the Terms of Service.
• Unlawful Use: You may not use our service for any unlawful purposes or in furtherance of illegal activities. International users agree to comply with all local laws regarding online conduct and acceptable content.
• Misuse of Twitter Badges: You may not use a Verified Account badge or Promoted Products badge unless it is provided by Twitter. Accounts using these badges as part of profile pictures, background images, or in a way that falsely implies affiliation with Twitter will be suspended.

Google+'s content policy contains similar restrictions. The point is that these social services contain mechanisms in their terms of service which prohibit users from using their services of these sorts of uses and to remove the content in question or delete the user's profile where these rules are infringed.

Neutral tools and misinformed assumptions

Notwithstanding these infrastructural barriers to improper uses of these services, governments and regulatory bodies have raised the possibility of regulation of the social Web as a response to what they may regard as offensive or inappropriate use of these social services. In the United Kingdom, the British government mooted the possibility of restricting access to social services like Twitter, Facebook and Blackberry's messaging services which were apparently used by rioters to co-ordinate their activities. The challenge with Blackberry's services, in particular, is they are purportedly encrypted and that has frustrated numerous governments seeking to spy on their Blackberry-using citizens. The desire to censor or restrict these services because they may have been used by criminal elements in the United Kingdom is short-sighted and doesn't take into account the beneficial uses of these services.

The Guardian published results of a study of Twitter usage during the London riots recently. Not surprisingly, the study's findings revealed that the perception of these social services primarily as tools for criminals was overstated.

Analysis of more than 2.5m Twitter messages relating to the riots in England has cast doubt on the rationale behind government proposals to ban people from social networks or shut down their websites in times of civil unrest.

A preliminary study of a database of riot-related tweets, compiled by the Guardian, appears to show Twitter was mainly used to react to riots and looting.

Timing trends drawn from the data question the assumption that Twitter played a widespread role in inciting the violence in advance, an accusation also levelled at the rival social networks Facebook and BlackBerry Messenger.

The study revealed that Twitter, for example, was used to organize responses to the rioting and to co-ordinate a clean-up. In other words, the victims of the violence used Twitter to organize themselves and a response to the same criminal activity which similarly relied on these services to propagate. Restricting access to these services may stifle criminal activity but it may also stifle beneficial uses of the services.

Locally, the Sunday Times article sparked various debates about the disturbing photo of the apparent right winger. One of the debates focused on how the photo and the story first broke in 2008 and was hardly the news the Sunday Times portrayed it as. The Sunday Times came under criticism for making much of an old story and yet these critics have glossed over two serious issues: the photo was still available on Facebook 3 years after it was first noticed by the media and the photo still depicts a very disturbing image of a white man enthusiastically posing over the apparent body of a black boy with his rifle as if the white man hunted him. Irrespective of whether the photo is real or a fabrication, the message the photograph should most certainly concern us for various reasons. It touches on old racial tensions which are very much alive and well 17 years after South Africa adopted a broad democracy based on fundamental rights such as equality and dignity.

The photograph also suggests that these same racial tensions are not just the domain of an older generation but have been handed down to a younger generation on both sides of the growing racial divide. We see it in this photograph and we see it in Julius Malema's rhetoric. These are some of the real issues we should be concerned about, not which publication published the story first or whether the photograph may have been fabricated (if the photograph is an accurate portrayal of what it appears to portray, it is an even more graphic illustration of these issues).

Regulation and censorship

Another debate which this story's renewed publicity has sparked is a similar one to the debate underway in the United Kingdom: should the social Web be regulated, censored, to address improper uses of these services? The chairperson of the South African Human Rights Commission, Lawrence Mushwana, recently released a statement suggesting that the social Web should be regulated. According to the Citizen, reporting on this –

Mushwana said even though there was no doubt that social networking sites played an important role in promoting the right of freedom of expression it was clear that practical ways should be found to ensure they were used appropriately.

One of the issues raised was individuals' ability to hide behind pseudonyms and relatively untraceable profiles and post offensive material or even conduct criminal activity using these social services (social services like Google+ and Facebook take a firm stand against pseudonyms and this has proven to be controversial). The SAHRC has apparently had to close numerous files because people suspected of human rights abuses have been unable to locate and hold accountable. One stark example of this is the young man depicted in the photograph the Sunday Times published. While that is certainly a concern, it is also important to point out that the call for assistance in identifying this individual was made, in part, using the social Web. The link to the article was published on the Sunday Times website and was disseminated using Twitter and Facebook links alongside the article almost 800 times on Twitter and over 3000 times as I write this. These numbers don't take into account how often the story's link was shared on Twitter and Facebook directly or even on other social services ranging from email to the relative newcomer, Google Plus.

Mushwana's chilling call for regulation ignores the fact that the law in South Africa already prohibits incitements to violence and hate speech, to name two features of these two stories. The right to freedom of expression specifically excludes its application to incitement to violence and hate speech. Criminal activities co-ordinated through social services, the phone or word of mouth are equally illegal and punishable. I also believe that just as with content piracy, criminals intent on abusing social services to further their criminal activities will find other ways to do this if current channels are simply cut off. What happens then is that the very people who would otherwise be empowered by these social services to resist our society's harmful elements will be deprived of an accessible, powerful and effective set of tools. What governments and regulators should rather do is find better ways to make use of these services to harness crowd wisdom to monitor and combat the social Web's abusers. One example of where British police have started doing this is publishing surveillance photos of the looters to Flickr and asking citizens to identify them so the police could arrest the suspected looters.

Legally speaking, there may be compelling grounds to argue that depriving citizens of the use of these social services may unreasonably infringe citizens' rights to dignity, freedom of association, not to mention the right to freedom of expression. We have a fairly robust recognition for the value of these rights in our constitutional jurisprudence and limiting the scope of our rights is not a small matter. The Constitutional Court in the matter of S v Mamabolo (E TV and Others Intervening) stated the following:

Freedom of expression, especially when gauged in conjunction with its accompanying fundamental freedoms, is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm. Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression — the free and open exchange of ideas — is no less important than it is in the United States of America. It could actually be contended with much force that the public interest in the open market-place of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way. Therefore we should be particularly astute to outlaw any form of thought control, however respectably dressed.

In policy terms, the question how far this sort of regulation goes also arises. Censoring criminals using social services is a relatively easy choice but what happens when the people using these services are legitimately protesting an unpopular government or policies designed to erode human rights. We have seen several examples of the former in the Middle East and north Africa this year and examples of the latter here in South Africa when the government introduced legislation which would substantially erode freedom of the press, for instance.

The law is developed enough to deal with these sorts of issues even as the tools used to commit these misdeeds become more widespread and versatile. The social Web introduced us to a new paradigm but that paradigm doesn't just apply to marketing initiatives, the social Web amplifies social conventions and empowers previously disadvantaged people who lacked the means to express their voices. The social Web is not inherently good or bad and regulatory frameworks exist alongside contractual frameworks established by these social services to recognise and combat abuses like hate speech and incitements to violence. What governments and regulators are forced to contend with is a fundamental shift of the power dynamics between them and citizens but those shifts can have profoundly beneficial implications for the same citizens those regulators seek to protect. Where citizens find themselves subject to tyranny, they have resorted to these tools to combat that tyranny. As the old adage goes:

Guns don't kill people, people kill people.

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Photo credits:

• Riots in Greece (Dec 2008) Tear Gas by agelakis, licensed CC BY-NC-SA 2.0
• Riot Squad by daveblume, licensed CC BY-NC-ND 2.0

Evolving privacy paradigms: Twitter, Facebook and Google+

I've been using Google+ for a few days now and despite being a "limited field test", it has a brilliant approach to privacy. If you are unfamiliar with Google+, take a look at this introductory video:

At Google+'s core is the Circles feature. Circles offers users fairly granular control over their contacts and what they share with who. Circles are a little like Facebook's Lists (don't worry if you've never seen those, they're not clearly exposed to users) and Twitter's Lists. Using Circles you can allocate contacts to Circles like Family, Friends, Acquaintances and pretty much whatever you want to call the Circles. Google+ gives you a few read made Circles but you can create your own. Here is another video introducing how Circles works:

Setting up Circles takes a bit of work because you need to go through your contacts and add them to whichever Circles you want to add them to. The interface is really slick and easy to use, a little fun even. Once the Circles are set up you have the option of publishing content to specific Circles or even specific individuals and this is where the brilliance comes in (at least as I see it).

Before getting into Google+'s privacy paradigm, its a good idea to revisit the Facebook and Twitter privacy models. Facebook tends to push people to share more publicly. Its defaults for its products tend to be more public than private and Facebook has made a few glaring mistakes where they have gone too far. Whether it be due to enormous public outrage or an evolving sense of how to handle privacy issues, Facebook has improved its practices but most users seem to be unaware of or unconcerned with the more granular privacy controls. The average user has few friends on Facebook and probably doesn't think too much about the publicity issues and certainly doesn't bother with lists.

Facebook has similar functionality to Circles and, in one respect, goes a little further than Google+. Yishan Wong wrote a handy description of this in his recent post on Quora critiquing Google+:

In fact, Facebook allows you to do everything Google+'s "Circles" feature do, including post things only to specific friend lists. Further, Facebook's selective posting feature is more advanced than Google+'s. Not only can you post information to specific Facebook Groups of curated friends, you can do more exclusionary posting than Google+

Despite the functionality being available on Facebook, few users actually use it and Facebook has pretty much buried it a couple layers down in the friends menus. That leaves many Facebook users left with a few choices:

1. who to friend;
2. what to share with those friends.

Unless you only friend people who you are genuine friends of or are related to on Facebook, you may find yourself having friended people who you may not be comfortable sharing all your content with so you may elect not to share everything. While this probably hasn't stifled Facebook's growth, the model has limitations based on its structure and users' preference to share more personal stuff on Facebook.

Twitter, on the other hand, has two privacy/publicity options: public or private. Anything tweeted publicly is public and you have no legitimate expectation of privacy. Its a little like standing on a street corner shouting out to whoever may be passing by. The private option is a little like going into a room and selectively allowing people inside to hear you speak. Twitter also has a Lists function which you can use to categorize Twitter users you follow. I have a number of lists on Twitter which include Communications and Marketing people; people I consider to be influencers; as well as other lawyers using Twitter. You can create your own lists and include whoever you may be following into those lists. As with your updates, lists can be public or private. I have a couple lists which I have kept private because they are meant for me, not everyone else. Lists are handy for when you want to focus on a specific group of Twitter users. I may, for example, switch from my general Twitter stream to my Lawyers list to see what those lawyers are talking about rather than try to single out their posts in my general Twitter stream of more than 1 100 people who I am following at the moment.

On Twitter you have two choices when it comes to publishing content: either publish your tweets to all your followers or don't publish the tweet (you also have an option to Direct Message people on Twitter but its a one to one messaging system). There is no granularity. This binary choice means you may be reluctant to share something you only want certain people to see. That limits how you use Twitter.

Circles borrows from the Facebook friends model and Twitter Lists. Using Circles you can limit your consumption and sharing to specific Circles or you can publish to the Public stream. Unlike with Facebook and Twitter you have quite a bit of control over who to share your posts with. In this example below you can see that I elected to share a post with people in my Acquaintances Circle, Sergey Brin and Robert Scoble. I also have the option of sharing my post with people in my Acquaintances list by email (they are not yet using Google+).

Privacy is about secrecy and about informational self-determination (being able to decide how your information is distributed and manipulated). Jeff Jarvis made the point that if you engage in a social network, the point is to share so privacy as secrecy is less of an issue. On the other hand, the other aspect of privacy becomes even more important because you want to be able to decide who can see what you share. The level of control Circles gives users may alleviate any anxiety about sharing stuff intended for a limited group of people. I prefer to limit visibility of my photos of my children to friends and family and its one of the main reasons why I am fairly selective about my Facebook friends. On Google+ I can share those photos with friends and family in one post and publish an interesting link or a few thoughts completely publicly in the next post. I have more control over who gets to see my posts. Moreover, users also have pretty granular control over their Circles' visibility (apologies for the cross-linking, I wrote about this aspect of Google+ privacy on my personal blog). This level of control makes Google+ far more attractive to users as a candidate for the one social network for all contexts.

Google has said that Circles are based on real-world interactions in that we tend to segment our contacts contextually. We have colleagues, friends, family, hobbyists and so on. Circles creates the infrastructure to recreate those contextual groups in a social networking environment. It is also important to bear in mind that Google+ is the latest and most publicized of a number of updates Google has rolled out and will be rolling out to make the Google ecosystem itself a social platform. Google+ is also still in a limited field test and isn't open to the public just yet so it remains to be seen whether it will gain traction with mainstream users. Regardless of whether it does attract a large userbase, Google+ has demonstrated a very different privacy paradigm which addresses many of the criticisms levied against Facebook in the past.