Is your marketing strategy diabetic?

One of the behaviours I haven’t really understood completely is why agencies and their clients don’t seem to grasp the importance of adequate legal frameworks to effectively support their social marketing and collaborative business initiatives? What has been clear is that very few marketers understand just how important it is to have good legal advice and frameworks and they frequently use something that looks right so they can tick the legal compliance box. Unfortunately that isn’t a very good solution because even the best intentions won’t be much help if they are also woefully uninformed. Most marketers that we have dealt with seem to be aware of the need for some sort of legal structure for their work and yet they just don’t take sufficient steps to understand their risks and cater for them. My recent diabetes diagnosis came to mind as an interesting analogy which I explore in this post.

One of the behaviours I haven’t really understood completely is why agencies and their clients don’t seem to grasp the importance of adequate legal frameworks to effectively support their social marketing and collaborative business initiatives? What has been clear is that very few marketers understand just how important it is to have good legal advice and frameworks and they frequently use something that looks right so they can tick the legal compliance box. Unfortunately that isn’t a very good solution because even the best intentions won’t be much help if they are also woefully uninformed. Most marketers that we have dealt with seem to be aware of the need for some sort of legal structure for their work and yet they just don’t take sufficient steps to understand their risks and cater for them.

This conundrum inspired me to use a personal health issue as an oddly apt metaphor for what seems to be going on at last week’s Advertising and Marketing Law Conference. For about as long as I can remember, I haven’t paid much attention to what I have eaten or been too concerned about how much I have exercised. My idea of going to gym until about December 2012 was making sure I visited enough times to retain my discounted membership through Discovery Vitality (Discovery isn’t paying me for this post or is even aware of it). I should have paid more attention because my family had a pretty long history of diabetes, high cholesterol, cancer, heart disease and one or two other conditions. I was also advised to cut back on my sugar intake a couple times over the years and I agreed there was merit in doing that but the risk just seemed to be too remote.

My Story

On about 5 February 2013, my wife and I went for a Vitality assessment. I thought the result would be similar to last year’s assessment where my key metrics were ok (except for slightly elevated cholesterol) except I expected to learn that I had lost some weight due to increased water intake since December and a couple substantive gym sessions over the holidays. I did see a couple differences between my February assessment and my May 2012 assessment. My weight was down (about 3kg), so was my waist measurement and body mass index measurement but my cholesterol was up about 0.7 mmol/l and, more significantly, my blood glucose was up from 5.5 mmol/l last year to 15 mmol/l in February. The norm is between about 4 mmol/l and about 6.5 mmol/l. That was alarming but, not understanding how this works at the time, I attributed that to not having fasted before the assessment and having had two cups of tea with two spoons of sugar that morning. Just the same, I was told to go for a fasting test the next morning to check.

The next morning, I went for a fasting pin-prick blood glucose test at my local pharmacy clinic and the test revealed about 13.1 mmol/l. Clearly something wasn’t right and I called my GP who ordered me in right away for further tests. He came back to me the next day with a diagnosis of type 2 diabetes (no doubt about it) and a test result of 12.7 mmol/l with a medium term average of over 8 (if I remember correctly). My life changed almost immediately. I started exercising more frequently and regularly, changed my diet almost completely and started testing myself and tracking my progress (my diabetes seems to be under control, thankfully). I also discovered that what I thought was a slightly elevated cholesterol level is actually far too high in conjunction with my diabetes and that places me at risk of something called metabolic syndrome.

Now, almost four months later, I am in better shape than I have been in decades (literally). My diabetes is with me now for the foreseeable future and I have to be pretty vigilant about my diet, injuries and a variety of other risk factors. On the whole, I am better off than I was at the beginning of the year but this was not something I expected to have in my life at 37.

Diabetic Marketing

So what does this have to do with social marketing? It occurred to me that what most marketers are doing is analogous to what I did for years. I see the big contributor to my diabetes onset as being unrestrained consumption. In a sense, this is what marketers active on the social Web are doing too. They work in a fascinating and engaging space and often do so with little regard to the legal consequences of their campaigns. Marketing online seems to be perceived as being immune to conventional risks and I often read advice from prominent agency “gurus” who speak about how various forms of engagement can address discontent and cure a brand’s problems. I’m too young to remember much of the 70s but when I think about what the hippies of the 60s and 70s must have been like, I look at some of these apparently authoritative marketers and social media strategists because they may as well have flowers in their hair when they talk to their clients.

That said, there are many instances where positive feedback on Facebook or a “Hi Bob, please DM us your email address and we’ll resolve your complaint” direct message on Twitter can defuse a sticky situation but the world is more complex than that and so are the people who have varying expectations of brands. Sentiment in a tweet can ravage a company’s share price and this can literally happen in seconds as many traders increasingly rely on artificial intelligence and automatic sentiment analysis for share trades, let along human traders reacting to humans coming together under a share #Acmebrandsucks hashtag. Reputational risk is only one of the many risk factors marketers need to be mindful of and they just don’t have the knowledge to anticipate and cater for a growing number of legal and compliance requirements and considerations that apply to their work as much as a traditional offline marketer (if such a beast still exists in large numbers).

We were privileged to listen to Michael Judin speak about corporate governance issues relating to the social Web and one of the principles he highlighted under the current Companies Act was the Business Judgment Rule (Samantha Buchler wrote about the rule in a post titled Business Judgment Rule – Valuable Protection for Directors Against Liability on the Jacobson Attorneys website) which comes to the assistance of directors who conduct a reasonable degree of due diligence in carrying out their duties. Directors who fail to do so, could find themselves in some pretty hot water under the Companies Act (penalties can include personal liability and prison sentences). This rule highlights the potential and very real risks to company directors who fail to inform themselves about their legal compliance and governance requirements as well as the risks their companies face through poorly informed marketing campaigns. The rule also highlights the extent to which marketers acting on behalf of these companies could find themselves liable for their failure to take reasonable steps to inform themselves about the legal ramifications of their work and the potential impact on their clients.

Put another way, not taking an active interest in the legal risks and possible consequences of their unrestrained consumption could leave companies and their agencies unnecessarily exposed to liability, monetary losses and reputational harm. This is a case where, like diabetes, prevention can be more effective than the cure but it requires diligence, entrenched processes and educating yourself (or even taking good advice from experts in the space). Taking steps to manage the fallout after an incident may be enough to keep a company standing (and often provides fodder for revealing case studies) but is it enough to say “We’ll just take our medicine if this goes badly, not that it will because we know what we are doing”?

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p>I love the social Web. It is a diverse, dynamic and exciting space where people can engage in so many different ways. It is a fun space to be in but there are real-world implications too. The question to ask yourself, as a company representative or marketer, is whether you are doing enough to educate yourself about the risks and are taking informed and calculated risks? If the answer is no, it is probably just a matter of time until you receive a rude awakening like I did in February 2012.

Holistic Legal Strategies for Collaborative Enterprises (aka Social Businesses)

Raspberry chocolate cake incident-5

With so much emphasis on the consumer-facing social Web, you’d be forgiven for thinking this is pretty much all there is to the social Web. Well, almost. Somewhere on the fringes was some talk about “social media policies” so there’s that too, somewhere.

The next challenge, as the consumer-oriented work matures to a large extent, is to start thinking about the Collaborative Enterprise as a whole and the various, interrelated themes and risks that inform your risk management, compliance and governance strategies going forward. What is the Collaborative Enterprise? It’s not an entirely new concept and it’s been known by other names you may be familiar with, such as “Enterprise 2.0” and “Social Business” (although the term “Social Business” was first coined by Muhammad Yunus for a “cause-driven business” which has as its purpose the achievement of socially responsible objectives rather than commercial enterprise in pursuit of profit). Just the same, it’s a fascinating business model because it emphasises a very different structure to the one we are accustomed to in business. Andrew McAfee, at MIT’s Centre for Digital Business, explained what this business model entails for Harvard Business Review:

From a legal perspective the implications are wide ranging and vary depending on which aspect of the collaborative enterprise you are focusing on at a given point in time. To me, the collaborative enterprise includes the following elements (at least) –

  • Staff and other stakeholders;
  • Vendors and other trading partners; and
  • Customers.

At each level, a set of risks emerge which must be considered and managed appropriately. When it comes to staff, for example, one of the tools a company would use to manage staff-related risks would be a social media policy. There are other risk factors and other tools but this is a prominent and often misunderstood and mismanaged one, in particular. When you shift your focus to collaborative trading models which include potentially competing businesses, the legal frameworks morph and focus more on managing relationships and access to sensitive information. With each new perspective and variation, further risks become possible (likely, even) and a set of legal frameworks will be required to manage those risks. As I said before, it’s a fascinating model.

The collaborative enterprise is bound to become a pretty strong and innovative focus area in the coming months and years. While the business model has been maturing for a few years in its various incarnations, the legal frameworks for this innovative business model appear to be fairly underdeveloped, generally speaking, and I find this pretty exciting. Just as the collaborative enterprise is a more innovative take on business relationships across the board, the accompanying legal frameworks should prove to be equally challenging and innovative in themselves. I’m looking forward to building some of these frameworks and to the opportunities they will enable.

I’m going to talk about some of these themes in more detail at next week’s ITWeb Social Media Summit in Johannesburg. I’m also going to conduct a workshop right after the ITWeb Social Media Summit on 16 August on social media policies where I’ll explore these mythical creatures in more detail. If you’d like to find out what these social media policies are really about, why not book yourself a seat at the workshop (if there are still seats) and find out.

Digital agencies that skimp on legal are negligently exposing themselves and their clients to substantial claims

Catch the highlights:

I’ve noticed an alarming trend with many digital agencies and the account managers responsible for advising their clients on their digital marketing initiatives: they view legal frameworks as something akin to the undercoat on a wall. It seems to be a good idea although it’s better to keep it thin, hidden away and forgotten about.

One of the concerns seems to be that legal content distracts from the fun and social elements of the campaign and too much emphasis on it would only upset the fans. It’s a grudge purchase and because no-one is really going to cause any real trouble the smart ORM people can’t manage, legal terms are added because, well, that’s just how it’s done. At least, this seems to be the thought process that too many marketers put into legal frameworks for their campaigns.

Nothing kills the mood of a social campaign quite like a lawyer insisting on a dizzying array of legal terms and conditions to address an unclear set of risks and using language no-one except the lawyer seems to understand, let alone appreciate the significance of. We lawyers have not been very good at conveying the importance of what we do, particularly where there are few practical examples of their value. We are in a risk management business and a lot of the work lawyers do is in anticipation of likely risks and aimed at reducing both the likelihood of those risks occurring and, if they do, the resulting fall-out.

By the time a transaction becomes the subject matter of a dispute (usually when “lawyers’ letters” are called for) or disputes go to court, lawyers are generally in damage control mode. Something has gone wrong and either there weren’t adequate protections in place to anticipate or even resolve the dispute before it went pear-shaped or there just wasn’t anything in place and the client took a leap off a cliff expecting to be caught by fluffy clouds and adoring customers, not hitting the rocks below.

Unfortunately the risks to these agencies and their clients can be very real.

What could go wrong?

You’re working for a digital agency and you’re asked to set up a Facebook Page to support a client’s campaign. You recommend “house rules” for the Facebook page and, in doing so, you implicitly advise your client (yes, this is basically what you are doing) to use the house rules on the basis that they will afford the client adequate protection from likely legal risks. In other words, when you (whether you be an account manager, copywriter or someone else) prepare those house rules and give them to your client to use on their Facebook Page, you’re telling them that these legal terms and conditions are intended to protect the client. Unless they have their own lawyers to check those house rules, they are likely to rely on your advice, assuming you’ve had those house rules checked out and approved by a competent lawyer.

If those house rules then turn out to be inadequate and the client finds itself faced with a claim of some sort that could have been avoided with adequate terms and conditions, then you really should have some sort of liability cover in place because you may need to rely on it to protect your business from a negligence claim. Well, that’s assuming your agency’s liability cover protects it from negligence claims based on bad legal advice. If the agency has professional indemnity insurance cover, it may be limited to negligence in the context of the agency’s business, namely digital marketing and communications, strategy, community management and so on. Liability for legal professional negligence is a somewhat different set of risks and the liability cover you thought was in place may not be available.

What happens next is a complex, costly and drawn out series of legal battles largely because you assumed that house rules are largely a formality and need not go much beyond a set of rules asking fans not to be rude, to play nicely together and respect the client’s brand. Odds are, those house rules didn’t cover copyright concerns, properly contextualise product or services-related information on the Page, privacy and how fans’ personal information is used (Facebook requires brands to have their own privacy policies to govern collection and processing of fans’ personal information) and a number of other considerations. This means the house rules lacked a real framework governing to what extent fans can rely on information you present them with through the campaign, whether they can use content on the site and to what extent, how you can use their personal information … you get the picture. Maybe everything will turn out just fine, perhaps not. Can you afford to take the risk?

Why are terms and conditions so important?

Terms and conditions are contracts between customers and providers. They are premised on the legal requirement that a contract can only really be binding on parties who have reached agreement that they be bound by the contract and on the contract’s terms. This is somewhat of a generalisation because the law has evolved to created exceptions on the periphery of this ideal scenario but the concept of a “meeting of the minds” is central to our contractual law.

That said, this doesn’t explain the reason why terms and conditions are contracts. The reason they are contracts is that the one party seeks to impose obligations on the other party and can only do so where the other party agrees to assume those obligations. In this case, the client wishes to establish a framework for fans to participate in, say, the Facebook Page and that framework comprises certain rights and obligations. In order for fans to be brought into a contract with the client, terms and conditions describing the parameters of this contract with a fair degree of detail are necessary. Without them, you have a lot of vagueness and uncertainty as to who can do what and with what. That is a recipe for a dispute due to mis-managed expectations, among other things.

A legal doctrine called the doctrine of “quasi-mutual assent” is what allows website and similar terms and conditions to bind parties to contracts even though they haven’t necessarily engaged in a more conventional and interactive contract negotiation process (that is, where one party is faced with standard terms and conditions and told to accept them or not take advantage of the related service).

Even with this doctrine, the terms and conditions must be detailed enough to establish an adequate framework governing the foreseeable aspects of a fan’s interaction with the Facebook Page, micro-site or some other aspect of the campaign. If the terms and conditions are vague or don’t cover important issues which they should cover, our courts have ruled that not dealing with important provisions can be pretty much the same as saying they don’t apply or should not be considered. If you, as the agency representative, have been instructed to ensure that fans are aware that, for example, product prices published on Facebook are not necessarily current purposes, are subject to verification and may be changed without notice and you don’t actually provide for this in the “house rules”, you may find that fans may be entitled to rely on and even insist on those published prices. That means you failed to comply with your client’s instructions and exposed the client to the loss being required to honour those prices resulted in. This is a relatively benign example but the potential prejudice could be more severe.

Add to this the possibility of class action lawsuits by angry consumers who feel they have been misled by inaccurate information in a marketing campaign which is not properly contextualised by adequate terms and conditions (let alone the reputational harm when the client is portrayed as a liar due to the inaccurate information), you may appreciate just how valuable these terms and conditions can be.

Here is a suggestion

Resist the temptation to cobble together house rules or other terms and conditions based on what you may have seen elsewhere online or may feel are adequate given the nature of the campaign and chat to your agency’s lawyer about the possible risks (likely risks, even if you are open to some degree of risk) and work with your lawyer to create a legal framework that adequately caters for those risks and remains consistent with your campaign’s look and feel. It is achievable and could help avoid a very messy and costly dispute.

Why giving legal advice on Twitter is a bad idea

TweetMyAttorney tweet

Karl Schuler is an attorney in Johannesburg who solicited legal questions to answer on Twitter using the Twitter account @TweetMyAttorney. I picked up on this through Jessica McDonald’s tweet about the profile and mentioned that the Law Society would probably have a difficulty with Schuler’s invitation to members of the public to submit legal questions. This sparked a bit of a debate on Twitter.

The debate between myself, Eve Dmochowska and Ivo Vegter (primarily) was whether Schuler should be permitted to give legal advice on Twitter. While he has since changed his approach (and this is reflected in his current Twitter bio which appears in the tweet screenshot above), the question remains a valid one. The one challenge I raised is that the Law Society would likely regard such an approach as touting. I approached the Law Society of the Northern Provinces a couple years ago about a proposed subscription legal advice service and I was informed, a year later, that such a service would not be permissible under the Law Society’s rules. If I remember correctly the concern the Law Society was that it would amount to touting. This may seem absurd but its important to bear in mind that the legal profession has a history of fairly conservative advertising practices and rules regarding ethical behaviour. It wasn’t too long ago that attorneys were not permitted to advertise at all.

Confidentiality and legal professional privilege

While touting may be a regulatory bar to giving legal advice on Twitter and other platforms, there are more compelling reasons why giving legal advice on platforms specifically like Twitter and similar social services is a bad idea. To begin with I have a concern about the implications for confidentiality and legal professional privilege (also referred to as attorney-client privilege). This privilege protects communications between attorneys and their clients from general disclosure. Correspondence between an attorney and a client can’t, for example, be disclosed in court by a 3rd party. There are some exceptions and instances where privilege wouldn’t apply but this privilege is critical. What many people don’t know is that this privilege vests in the client, not the attorney. The attorney is bound by it and the client can waive privilege. If the client waives privilege then those communications are open game and admissions which a client may have made to the attorney in confidence can be disclosed and used by other parties.

Looking at tweets people have directed at Schuler, I see a number of tweets containing potentially sensitive information and which should be kept confidential:

If I do not pay my rent can the sheriff attach and remove my movable assets immediately by means of interim Court Order?

hi I was arrested 4 suspected drink n drive n it took 3hrs b4 dey took blood samples n charge Me, do dey hv a strong case?

There are a number of problems here. These tweets are public and could be regarded as evidence of the Twitter user’s intention to waive privilege. This would clear these tweets for use as evidence in legal proceedings. There are implications outside legal proceedings. Imagine the person who tweeted about being arrested for drunk driving being Googled by an industrious insurance company employee when the tweeter applies for car or life insurance. What if a prospective employer finds the person’s Twitter profile and discovers these tweets? There are a number of potentially unforeseen and undesirable consequences which can be fairly severe.

Professional liability

The potential consequences for an attorney giving legal advice in such a forum can be as severe. Twitter is not an ideal platform for legal advice at all. The platform is too constrained and too public to enable a lawyer to take detailed enough instructions from a prospective client and give appropriate advice. Taking instructions from a client can be a lengthy process. As lawyers we need all the facts and we need to consider the myriad legal issues which apply to those facts. Advice we give is almost always far too involved to be satisfactorily encapsulated in 140 characters. Trying to squeeze instructions or a brief and consequential advice into a couple of tweets is reckless on both sides. It is almost guaranteed to result in a professional negligence claim when inadequate advice is given on the basis of an incomplete factual matrix and the client relies on that advice to his or her detriment.

Sharing knowledge is good

Where Twitter and other platforms is really useful is raising legal issues and sharing general knowledge about those issues. Here I am referring to posts which discuss legal developments or legal challenges in more general terms and which are not specific to a particular client’s circumstances. The posts may fit a particular client’s situation but they can’t replace specific legal advice. This may sound like propaganda by lawyers who want to retain their income streams but very few cases are so alike that they warrant the same legal advice. Facts vary and cases develop in different directions. The law is increasingly complex and the end result is that legal advice must often be tailored to clients’ specific circumstances.

I am a big believer in sharing my thoughts about and knowledge of the law, particularly in my area of speciality. It is an important part of meaningful access to the law and I would love to see more lawyers doing this more often. Legal knowledge is frequently trapped in silos and consumers and businesses often rely on bad and second-hand legal advice, broken telephone style. Empowering clients with more knowledge helps them make better decisions.

Ultimately, using social media to educate and inform people about the law is something more lawyers should be doing and I think it is more beneficial than harmful, by far. Giving legal advice using social media is problematic for a number of reasons, though.