License Agreements, Privacy Polices, and Bears, Oh My! – App Store Foibles

Downloading an app shouldn't be as dangerous as driving in this traffic.

Downloading an app shouldn’t be as dangerous as driving in this traffic.

As you add apps to your new iPad Air, how much have you been reading the licenses with those apps, or the privacy policies?  I know that as a mobile app developer that dealing with the proprietors of those marketplaces is a challenge.  They change the rules, and when they update their mobile OS, they may actually break your app.  Frustration with those changes is not an excuse to not provide your users with meaningful information about what they are getting into.

I am going to use a recent game that I picked up as a case study of what not to do as a mobile app developer when you are generating the documents that go along with your mobile apps.  Stop thinking the customers aren’t paying attention and do the right thing.

NOTE: I am going to be referencing what is in the description in the iTunes App Store.  Given what I found as I looked deeper, I can only assume that the problems are replicated across all marketplaces.

My foray as a customer into the morass that we all created

Yesterday I had the pleasure of picking up the next installment in the Anomaly Warzone series, Anomaly 2.  This is a game that takes tower defense games and looks at it from the perspective of the guys running through the maze.  Fun game.  But I had some time as I was waiting for it to download, so I started looking at the reviews and then the licenses, and the buried privacy policy.

Before I start to go into this case study of generally what not to do, let me say this.  I really enjoy this game.  I played the first iteration for hours.  The graphics are stunning and the game controls are easy to understand.  So my benefit is great gameplay.  I still don’t know what cost I am going to pay because there are some interesting things I agreed to.

I hate boilerplate!

I understand that lawyer’s time is limited and that boilerplate is necessary to get your work done.  Reliance on it is lazy, though, and I hate it.  Especially when mistakes pop up.  If you click into the license agreement, you don’t have to go very far to get to this:

SPECIAL TERMS APPLY TO SCRABBLE USERS

I didn’t download Scrabble, so why do I care.  Your developers took pains to develop a new game so why did you lazy your way through it’s license agreement.  They have great systems to manage code bases for different projects, so should you.  Stop Being Lazy!!

You consent to impermissible data collection!

Remember when Apple told developers to stop using the UDID in their apps.  They even offered something they think is better, the IDFA, or Identifier for Advertisers.  I remember this because I talked about it.  Guess what, if you download and use an EA game, you actually agree to them using the UDID:

… you agree that EA and certain third parties … may use cookies, web beacons and other analytic technologies to collect, use, store and transmit technical and related information regarding your mobile device (including MAC Address and/or unique device id or UDID) …

Again, stop being lazy and why are the lawyers not talking to the developers.  I am reasonably certain that the app actually doesn’t use the UDID.  As to MAC addresses, remember that stores that use WiFi to track consumers are using the MAC address as the data point.  So know your game habits can be combined with your in-store purchase behavior.

If this was a case of a minor bug release, I would be a lot more forgiving of the legal support that is given to this development team.  But this is version 1.  Why is it so hard to put some actual legal work into the app release.  A few hours of time would be enough to clean this up.

It’s almost like they just don’t care.

Where is the privacy policy?

If you are buying this game, unless you click into the license agreement, you will never get a link to the privacy policy until you launch the app on your device.  EA has a privacy policy.  It is a simple enough matter to provide a link to a global privacy policy in your app submission.  They don’t get to cry that it is too hard to do this.  I know that it is just another field in your app submission.  Stop Being Lazy!!

Third parties galore

The bestest part of this license agreement is a comprehensive listing of all the third parties that may collect, store and use your data, as well as their privacy policies.  In the License Agreement on the iTunes App Store, I find it amusing that I get a link out to the Google Apps privacy statement.  Why?  Because the lawyers were too lazy to update.  They also have a huge problem with duplicate entries (go to the bottom of the license agreement and tell me why I need two links to the same page).  Also multiple entries in different categories for the same company.  This is absolutely insane.

This comprehensive listing is ridiculous.  Either all these companies are collecting and using my data from the game (probably not given the mention of Google Apps), or the legal team just did a dump of all contracted vendors and dumped them in this document.  I bet some of these companies don’t even have a current relationship with EA.

Your developers work hard, so should your lawyers

Why is the legal requirements always the last to be dealt with?  How involved was the legal team in the development?  In my time, I tried to be aware of all that was going on.  As things changed in the app ecosphere I reached out to see what we were doing.  Am I the only one?  I know I am not.

Your users deserve the best out of your legal team.  Apparently, EA doesn’t think too much of its users to really think about reasonable terms of the agreement between the user and EA.

If you have more than one app out there, I understand that there is a challenge in managing different licenses.  Go talk to your technology teams.  I bet they have some tools that you could use.  Stop being so lazy.  Do the right thing by your users.

By the way, I didn’t uninstall the game, or neglect to pay the game.  I guess I am just part of the problem.  That doesn’t mean that the problem goes away.

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Mobile and Social Engagement – Using Games to Reach Users

All the worlds a game and we are merely players, right?

All the worlds a game and we are merely players, right?

One of the new frontiers for customer engagement on both mobile and social is the increasing ramification of the user interface.  Making it seem more like a game, and the elements of that user experience more fun-seeming.  I am not a psychologist so that actual science behind it eludes me.  What I do know is that it works.

The gaining of badges, achievements, etc. Seem to motivate people to engage more on forums and with brands.  They feel special and they are hooked into the ongoing desire to gain that next level.  How often have you done something for too long just to get to that next level.  Think World of Warcraft and you get the idea.

Gamification, if done rightly can be a great way to get your users and customers to work with you more and do the things that you want them to do.  Please use this power for good, though.  There are some real issues with this, though, that you need to be aware of.

Let’s start with my favorite video clip explaining how you can gamify your life. The speaker is Jane McGonigal at TED and she spends some time talking about how she gamified her own life. This is a pretty inspiring talk:

What is this gamification thing, anyway?

Wikipedia says that gamification is the use of game thinking and mechanics in a non-game context. So, if you make a game out of doctor visits, blood pressure checks, trips to the gym, etc, you are gamifying wellness. For some this external motivator overcomes their natural inertia to do nothing. Motivating people to take care of themselves is definitely no simple task.

Gamifying takes place also very subtly in some of our rewards based programs. A $50 check for driving safely over the last insurance period is a game-type reward. I wonder how many people think about that when they drive though? There are teen safe driving systems that give instant feedback on risky driving behavior, such as hard-stops and starts and quick lane changes. The immediacy of such feedback does change behavior over time.

Gamification of marketing is also something that over 70% of companies are looking to for marketing and customer retention. Very cool stuff for those that are motivated by these types of external rewards.

You want to collect data, right?  So plan for that!

The biggest issue I see with gamification is data collection practices. What data are you collecting to administer the game aspect of your campaign? Is there are correlation between the data you are collecting and information that is regulated? Think age, for instance. How are you handling the data and where is it going?

Be careful about how much you gamify it

The more you gamify something, the closer you get to the Children’s Privacy line. This is where the next biggest issue is.  As you pretty up your user experience the greater the argument becomes that you are directed it, as an indirect effect, towards children.  Even adult concepts like insurance and banking can be gamified so much that you can’t effectively argue that.  The Children’s Online Privacy Protection Act (COPPA) governs the collection of personal data from children under the age of 13. The recent amendment to COPPA also expanded the definition of who is collecting this data.

If you gamify a marketing campaign have you made it more desirable to those protected by COPPA? Many brands use the quick legal sleight of hand to say in their terms that it is not meant for children under age of 13. Q.E.D., right? Wrong. If you make something attractive to a child, you will be subject to the provisions of COPPA. Unless your subject matter may be too complicated for children, or you effectively age-gate, you will need some provisions in your campaign to deal with COPPA.

Other than data collection and COPPA, you are left with all the practical issues of any marketing campaign. Find someone who has some experience in gamification and pick their brain. Ask yourself if the game elements work for your campaign. And be open to comments from folks who “just don’t get it.”

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I Came Here Expecting Fair Use – Copyrights in the Digital Age and Funny Clients

Getting fair use and copyrights wrong can cost you tons of money.

Getting fair use and copyrights wrong can cost you tons of money.

Clients are sometimes the funniest and cutest creatures of all time, especially when it comes to copyright law they learned on the internet.  If your clients do any type of creative work, you have probably heard the cry, “but it’s fair use,” or even better, “it’s in the public domain.”

If you have ever said one of those phrases to your lawyer, please read carefully and stop saying that.  Fair use is one of the most overused and least understood concepts in intellectual property.  Lawyers even get this wrong.  Creatives may hear this fair use thing first in school, where the rules are much looser and then think it’s a blanket license.

Unfortunately when you transition from education to commercial, your ability to cry fair use is so limited that you need to remove it from your vocabulary.  If you are using someone else’s content in your creative and you don’t have a lawyer in your back pocket you are just asking for trouble.

As to public domain, it is a long, long, long time before something passes into the public domain and then even in limited circumstances.

You Can’t Cry Fair Use 

Fair use is a legal creation recognizing that people using otherwise protected content can be a good thing for society.  As long as it is within certain boundaries, of course.  There are four factors in the fair use determination in the United States:

    1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    2. the nature of the copyrighted work;
    3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    4. the effect of the use upon the potential market for or value of the copyrighted work.

(SOURCE – 17 U.S.C. § 107 from the Legal Information Institute)

You may think that now that I have provided you factors that you can use, you are qualified to make that final determination.  YOU ARE NOT (and I am pointing at the lawyers, as well).  Quite frankly, neither am I.  If someone tells you that what you are doing is fair use and they are not a judge, they are wrong.  The only entity in the US that can make a fair use determination is a judge.  All lawyers are doing is giving you arguments.

Honestly though, there are some calls that are easy to make.  A professor taking a passage from a recent translation of Les Miserables and putting it in a slide presentation is very likely fair use.  That doesn’t prevent the copyright holder from asserting copyright infringement of that work, because it is.  Fair use doesn’t make the infringement go away, it just gives you a defense.  Let me say that again.  You are infringing the work, fair use only gives you a defense.  To make it even more fun, only a judge can finally determine whether the use is fair or not.

I Came Here Expecting an Argument

An argument is all that a lawyer is going to provide you.  There are good arguments and there are bad arguments.  If you are in a non-commercial (read educational) setting, you have greater latitude than for-profit commercial companies.

If your use is commercial, your arguments under the fair use doctrine are limited.  I have heard some clients try to tell me that only external uses are commercial.  They are wrong.  An internal presentation is still a commercial purpose.  Everything you do if you are a company is for a commercial purpose.  Thankfully for the corporate folks out there, commercial use is only one of the factors.  If you are making money, a good argument can be made that you owe royalties for the use of someone else’ creation.

There are other arguments to be made, as well.  You can argue that your use does not hurt the market for the original.  If your business is commentary or humor, you can argue that your use is just that.  You can argue that it is a parody of the original.  You can argue that the use is satirical.  You can even argue that the use is transformative.  At the end of the day, they are only arguments.  If you hear from a lawyer that “that is fair use,” you need to translate that to “that is probably fair use.”  What they are doing is formulating a fair use argument, not telling you it is or is not.  Though the nice thing about a lawyer telling you that is that you can point the finger at him when you end up in a plight like Mr. Brainwash.

Playing Fast and Loose

I have never been a fan of rigid rules, nor of too much overhead.  Lawyers create overhead.  So, let’s look at more of a practical approach to this analysis.  If we look at the graph where the x-axis represents the amount of the copyrighted work you have used, and the y-axis represents the size of the audience.  What this graph shows is the amount of legal exposure you may have.  High and to the right is not a good place to be without an opinion, or a 102 mph fastball.

High and to the Right will Hurt ... A LOT!!

High and to the Right will Hurt … A LOT!!

Please don’t get me wrong.  This is not meant to justify copying someone else’s creative work just because your audience is small.  I am just telling you the reality of the world.  If a tree falls in the wood and no one is there does it make a sound.  I say yes (because sound is a wave of disruption of the air, not a philosophical concept).  If you use a copyrighted work and the owner never knows about it, is it still infringement?  I yell YES!  It’s just that practically the infringement gets lost in the noise of the world.

Your analysis for a full page ad in the New York Times will be different from your analysis for a presentation given to a closed room of executives.  I am talking about  a sliding scale of work for the lawyer.  Spend more time on that full page ad, and maybe even a full blown opinion letter.  Spend less time, if any time, on that presentation.  There are only so many hours in the day, and while you probably should have a fair use opinion for every piece of copyrighted material you use without permission, you don’t have enough lawyers for that.

At the end of the day just ask yourself (and honestly answer yourself) how you would feel if you were the creator.  The madder you would get, the more you need to get the right advice.

Related Posts

Copyright Licensing, aka getting permission

Trademark fair use, aka using a logo in your content

DISCLAIMER: this post is directed to United States law.  Each jurisdiction across the world handles this differently.  In all cases, consult attorneys licensed in that jurisdiction and area of law and get their counsel before infringing on other people’s work.

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Looking Past Your Nose – Social Media Risk Management Education

Money changes everything.  And makes regulation so much more onerous!

Money changes everything. And makes regulation so much more onerous!

If you are worried about managing the risk in social media, one of the ways to learn about how to do that is to look at how others are doing it.  You might be in an industry that is used to playing fast and loose with the rules.  Social has been an emerging platform so the visibility to it from a risk perspective has been relatively low for a while.  That is no longer the case in most industries.  Between the FTC and the NLRB (US-centric) and other regulatory bodies, you are facing increasing oversight.

Generally, if you plan for the worst case scenario the simple problems will end up being just that, simple.  If you are familiar with Six-Sigma training and audits that is really all that is there.  Imagining how things can go wrong and looking at how to respond to them.

The most regulated industry here in the US concerning consumer messages is the financial services industry.  Financial advisors are monitored and recorded, firm content is pre-approved and pre-filed and layers and layers of control is in place.  All so that investors aren’t taken advantage of.

Learning from the persecuted

Trying to do social media authentically for financial advisors has been quite a challenge over the years.  The Securities Industry and Financial Markets Association (SIFMA) has been instructive over the years in this space.  Bringing together both practitioners of social in the financial advice community with experts from the platforms and regulators, they have helped educate.

If you aren’t watching what they are saying in this space, you are doing yourself a disservice.  Why?  The challenges that they are facing and overcoming now are the same ones that you will face later.  What do you do for record-keeping today?  Do you retain anything?  While slow to embrace social, firms doing it have put in place controls and processes that would easily stand up to other regulatory schemes in my mind.

SIFMA just published the highlights from their latest meeting on social media in this industry and it is quite illuminating.  They also provided links to three of the presentations which I want to summarize and comment on here.

Compliance Strategies for Social Media, Mobile Devices & Other Communication Tools – presentation

The opening slide quotes from the Financial Industry Regulatory Authority’s (FINRA) recent notice 10-06 and outlines what is generally the principle behind all oversight (changing the wording a little, here):

    • Protecting consumers from false or misleading claims
    • Effective and appropriate supervision
    • Maintaining flexibility to allow brands to communicate

The presentation goes and recounts some of the other sections of 10-06.  While the slides are quite wordy, they are worthy of reading.  You should be considering retention, retrieval and supervision issues within your activities.  Beware of systematic limitations and back-up cycles so that things you want to go away are going away in a timely manner.  Also pay attention to engaging on platforms you do not control (your FB page, for instance).  FINRA doesn’t care if you control it or not.  If you are talking on it, you should be retaining and supervising it.

They throw out bring your own device (BYOD) as an issue, but provide no actual guidance.  If you are doing BYOD, beware the hidden costs as you salivate over the cost savings.  Things like giving up control may not be worth it, though there are firms out there that can help you on that journey.

Navigating the Web of Social Media and Regulation – presentation

While tilted towards the financial advice industry it does provide some good guidance and background.  I found it curious that they left out the first FTC guidance on endorsements and disclosures, though.

They do talk about the kerfuffle that was created back in January 2012 when it seemed like the SEC was saying that a “Like” was a testimonial under their guidance.  This was weird, and has been talked about quite a bit.  Unfortunately, after all the hand wringing and feedback, they haven’t come out with anything more than just a statement that they are still looking into it.

The other instructive portion of this presentation was the section on folks who engaged in social improperly.  While not enlightening in their particulars they generally fall under the “trying to put one over” the consumer vein.

The presentation also mentions guidance that came out from the Federal Financial Institutions Examinations Council (FFIEC).  This is another document you should be looking at.  If you haven’t implemented any risk management on your social activities, this is a good place to start.  A hard place to start, but a good one, nonetheless.

A Conversation with Social Media Leaders – presentation

This was generally just a puff presentation, to be honest.  The only practitioner was from Putnam Investments and they just presented the business case for social engagement in this space.  The other panelists were platform representatives and a vendor.  I generally find that what they talk about is fairly self-serving, and this presentation is much of that.

Learning

This industry has had the greatest growing pains.  Instead of a fire, fire, aim, fire process which is what most of social engagement has been, they take a more measured approach.  To make an analogy.  Most of social is a “tell me what I can’t do” attitude.  In financial advice it has been a “tell me what I can do.”  In the latter the assumption is that nothing is allowed.

The leaders in the financial advice sector have taken very measured risks.  If you implemented what they have done, while probably too restrictive for your own industry, you would be very well positioned concerning your own regulators.  Learning from the persecuted now helps ensure that you won’t be persecuted sometime later.

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Put Privacy Truly First – Design It In From The Beginning, or Else!

Privacy design shouldn't be a gamble with your user's data.  It should be designed in.

Privacy design shouldn’t be a gamble with your user’s data. It should be designed in.

If you are fearful about the pitfalls that privacy missteps can bring to your brand, you need to start at the beginning and bake it in to everything you do.  The more time you spend up front designing privacy into your operations the less time you will spend dealing with issues.  Unfortunately, most brands and most companies work on privacy only after a problem crops up.  One of my favorite writers on practical privacy issues, Kashmir Hill of Forbes, called this the flip-side of privacy by design, “embarrassment by design.”  I love this.

Let’s face it though.  Lawyers learn by someone else’s mistakes.  Someone did something wrong, therefore we don’t do that.  The problem with privacy breaches is that once the privacy horse is out of the barn, it is roaming the pasture telling everyone about you.  Yes, my horse is the famous Mr. Ed.

Privacy by Design is all about thinking about private personal data handling before you even fire up that system or release that piece of software code.  Baking it into the design process.  You can learn alot about Privacy by Design (PbD if you like acronyms) from my neighbors to the north, Canada.

The Great White North

The Privacy Commissioner of Ontario released this document in 2011 that outlines 7 foundational principles.  It is great as a backdrop as I go into more detail what PbD means to me.  The 7 principles are:

    • Proactive not Reactive, Preventative not Remedial.  Don’t learn from your mistakes.
    • Privacy as the Default Setting.  Yes, most of us leave the default settings as is.  Scary, isn’t it?
    • Privacy Embedded into Design.  More on this later.
    • Full Functionality – Positive Sum, not Zero Sum.  Everyone’s interests are alittle different, seek to design a system that takes that into account.
    • End-to-End Security – Full Lifecycle Protection.  Cradle to grave protection should be your goal.
    • Visibility and Transparency – Keep it Open.  I so want to say, ‘no duh.’  Wait, I just did
    • Respect for User Privacy – Keep it User-Centric.  It’s all about the users, stupid.

Theory is Great, What About Practice

The principles are great, but what does it mean when I stand up my project team, or even before I do that.  If there is any indication that your project will be collecting user data, you need to add privacy as a component of the work.  I don’t mean someone who does double duty with privacy aspects as a collateral duty.  I mean a true Privacy Lead.

Examine the reasons why you are collecting user data.  If there isn’t a good reason, stop, don’t pass go.  If your reason is we want to collect that data because we can derive value from it, what is the value to the user?  If your project sponsors can’t articulate the user value to your privacy lead, stop, don’t pass go.

Identify where the data is going to be stored.  Who will have access to that data store?  Where will it be located?  Are you putting it in the cloud?  As you work this step, also look at who has access to those data stores.  This includes other systems.  It would be my suggestion that you have separate systems for the storage of protected data.  It should be a simple enough thing in other systems to put a pointer back to that original data store.  Don’t replicate data, maintain control.

Identify the actual uses of that data.  Think about other ways to use that data, too.  This is a bit of a brainstorming exercise, so have fun with it.  If the data is location information, maybe a use would be offering up free crab-cakes when the user has just gotten back from Maryland.  In all seriousness, you need to think long and hard about this.  It also includes the combination of this data with other non-protected data.  Unless you are all about making new law, please don’t say that once combined it is no longer protected, or that you users no longer really own the data.  It’s about the users, remember.  If you do that, be prepared for embarrassment by design.

How will the data be managed and when will it be purged or deprecated.  You can accomplish the non-use of data with programmatic controls over the data store.  Once you no longer need the data, sever all connections.  Purge the data out of your systems and backup tapes as quickly as you can once you no longer need the data (practically and legally).  If you keep the data around, I bet you hard cold cash that someone will want to combine it with other data stores.

Listen to your Privacy Lead.  This person should have a report chain that is different from the project lead and project sponsor.  They should not be beholden to your ship deadline, though they need to be sensitive to it.  Find the pragmatists in your organization to serve these roles.  They may be privacy professionals if you organization is big enough.  What they need to do is ask the hard questions.

Listen to the users.  I highly recommend field-testing your system/process with an average user.  Let them react to the collection and use of their data.  See what they say.  If Renew had done this, I wouldn’t have had anything to write about a few days ago.

Privacy by Design is all about Doing the Right Thing

Doing the right thing should be your yardstick when it comes to user data.  Looking at everything through this lens will help you.  Quite frankly, privacy is simple.  It’s the actual doing of it is hard.  Having someone who is trusted by  your project team who is focused on these issues will help you.  Having people who don’t discount the user’s perceptions is also a good help.

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Old Laws, New Space – Social Only Makes It Easier to Screw Up

Writing today in social is no different than yesterday.  Your statements could be used against you.

Writing today in social is no different than yesterday. Your statements could be used against you.

Some of the most popular postings in social are things that are confrontational or controversial.  The problem with those things is that someone will always be mad and someone will always find themselves at the wrong end of it.  Sometimes this may be easily recovered from with an apology.  Sometimes a brand may need to fire someone.  At the end of the day, saying something on social is no different than off the internet.

So where does your liability, as a brand, come from.  Have you thought about re-publishing someone else’s hyperbolic statements on your twitterfall displayed on your home page or in your fan tent at a local sporting event?  What if their statement rises to the level of defamation?  Ouch.  You definitely need to have some worry in this space.

Now that I said you need to worry, I recognize that what I am talking about are edge cases.  These are the things that will get talked about in the paper with various pundits saying, well everyone says that on the internet.  Or, shouldn’t we all just get a thick skin.  Exercise some reasonable caution and implement reasonable controls in what you do, and you will be ok.

As a brand, republishing someone else’s content is where some of the larger risks in user-generated content comes from.  What liability do you bring upon yourself, and how you control it, may mean the difference between success and incredible legal failure.

What is defamatory? What is Libel?

A large body of U.S. law, like most countries that used to be part of the British Empire, is based in common law, and defamation and libel are no different.  Common law is law that was not created by a government, but has been created over time by various court cases and has evolved slowly.

Libel requires defamation as an element, so let’s talk about that one first.  In order to be defamatory, a statement must be published, false, injurious and unprivileged (Sourcewww.nolo.com).  Published does not necessarily mean in the paper, or on twitter, it can be spoken, as long as a third party heard the statement.

In contrast to publicity law, public officials and celebrities actually have less protection than you, because the U.S. Supreme Court in NY Times v. Sullivan, the Court created a rule that added an “actual malice” element when the speech was about a public figure.  We can talk about publicity law on another day, but relish the fact that as a nonpublic figure you have more protection.

Libel on the other hand, subsumes defamatory into it’s elements.  Under the Restatement (Second) of Torts, libel requires that: the statement was false and defamatory; speaker made an unprivileged publication to a third party; the publisher acted at least negligently in publishing; and in some cases, the complainant must prove special damages.

There is definitely some overlap, but let’s look at social networks and your statements there.  There is definitely a publishing step there.  The rest is pretty standard.  So if you make a libelous statement, you are liable (pardon the tongue-twister).

While truth is always your best defense, there are some limited defenses that you might be able to turn to.  The best ones (for this particular medium) in my mind, are rhetorical hyperbole and opinion.  A decent argument could be made from “in my opinion, such and such is …,” but I think that one is tenuous.  The other one, rhetorical hyperbole – material that no reasonable person could believe – might just work the best for this particular medium.  At least in the U.S.

For those Twitter users in the U.K., the Lord McAlpine case is instructive of what could happen (and while I think those in the U.S. may be a bit more safe, you don’t want to be the first case).  Sally Bercow is still on the hook for £50,000 for “Why is Lord McAlpine trending? *innocent face*.”  The Now Show on BBC Radio did a great parody bit on this case when they suggested a defamation plan added to your mobile plan.  But the net of this case is watch what you are doing.

The interesting thing to point out from the Lord McAlpine case and my recitation of the elements of libel/defamation is that as long as you agree that posting something to your social network is a publication than you are squarely in the crosshairs of law that has been around since before the invention of electricity, much less the Internet.  I am a huge fan of the term meatspace to distinguish online from real life, so in this case there is no difference in meatspace and social media.  If it’s libel, it’s libel.

Brand liability?

Do you re-tweet your users posts, or republish them in any way?  Do you publish a Twitterfall to your homepage, or maybe on an internal screen in your communications department?  Guess what – You are a Publisher!  I have never been a big fan of uncontrolled Twitterfalls to be honest.  I think there is a bit too much that could happen.

When you are providing a pipe to content that you did not create, there are many traps you need to run.  Do you own the content, or do you have a license to it?  Are you taking the content out of the service within which it was originally published?  This segues quite nicely into a discussion of platform terms of use, which I will talk about tomorrow.

For today, let’s just all fall back to what we learned from our parents – if you don’t have something nice to say, don’t say anything at all.  A great lesson from our childhood that I think would serve you well in social media.

As a brand, assume that in your user-generated content portals and views that you will object to at least one thing every day that is posted.  Now figure out what to do with that and you will be better prepared.

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User-Generated Content – Driving Towards Compelling Marketing and Content

Your users and employees want to say something.  You want them to, as well.

Your users and employees want to say something. You want them to, as well.

Everything you do is marketing in one form or another, and user-generated content is one piece of it.  Running an effective website that doesn’t crash (I’m looking at you healthcare.gov).  Having a vibrant ratings and reviews community.  Running an external blog.  All of it is part of an overall whole.

What you need when you do all of that is great content.  As brands have embraced user-generated content more and more, we are also seeing a trend away from the overly produced marketing that some of us grew up with.  This trend has been embraced on TV and in the movies already.  Look at the popularity of reality TV.  In the movies, we got the Blair Witch Project and a genre of found footage film took off in popularity.

The new melting pot

Today, one form of marketing by itself will not get you to the finish line.  You need to bring them all into a cohesive whole.  That includes social networks, and user-generated content.  Being silent in one area will lead you to unreached eyeballs.  It also includes bringing your employees into the mix.

User generated content

We have talked on more than one occasion about user-generated content and leveraging free labor.  The basics are well known.  I am no expert in the birth and upbringing of those types of communities, only in how to manage the risk associated with them.  Since this is the internet, though, I will say a few words.

Create a portal where your fans want to come.  If they give up their own creations, give them something back.  Recognition, badging, or a small slice of fame (highlighting them, for instance) are all ways to give them something of value.  You can’t guarantee that what visitors will see will be good, but it will be real.  In my eyes, real can trump good.  Why?  Because the creator is speaking the same language as the viewers.

Employee messaging

This is both internal and external.  Internal content reaches a captive audience.  They have to be exposed to it.  This may be in the form of electronic billboards.  If you don’t think this is marketing, think again.  Your employees are your best advocates.  They are real people and what comes out of their mouth is genuine.

So their message is real, right.  Real wins, right?  With employees you get the greater benefit of helping craft their messaging.  Give them the soundbytes to weave into their own words.  Let them use their own words.  If you try to control them, it will backfire.

Give some of your employees an external voice.  What I mean here is not your team of communicators.  I mean employees whose job is not that.  I mean let the person who answers the phones to handle customer complains write something or record something.  Let the world know what their life is.  Put a face to your brand.  Weave that into your marketing.  Cross-pollinate those things onto your careers site, as well.

Everything is contextualized

The days of the brand sitting up on high and speaking down to the serfs is over.  The brand is now amongst the serfs, as is one with them.  This is especially true of social where the brand is truly just another user.  Remember that social platforms were not created for brands.  They were created for users.

Creating truly compelling content means having context behind it.  The context of a user speaking in their own voice.  The context of an employee speaking about what they are doing for the users.  Weaving all those things together will create a wonderful tapestry of the most compelling content you will ever see

Watch the pitfalls

Since this is a legal blog of a variety, I have to remind you of the risks in leveraging all of this.  So let’s bullet them out a little:

    • UGC – make sure you have the proper ownership and the proper licenses before you re-use
    • UGC – make sure you practice good moderation
    • UGC – make sure you properly staff your communities
    • UGC – always be wary of FTC disclosure guidelines and what could be considered a material connection
    • Employees – Double shot here.  FTC disclosure guidelines should be something you tell your employees about
    • Employees – build up a good thick skin for problems
    • Employees – training and regular messaging to employees about social and expectations

That’s it for today

I don’t think I have really told you anything you didn’t already know.  I do find it humorous to observe that most companies don’t have a cohesive umbrella for all this.  What ends up happening is that one hand doesn’t know what the other is doing.  That campaigns for external audiences are not communicated internally, and vice versa.

If you really want to weave all of this together it will take some effort, but I think the content you create will truly be wonderful, but most of all compelling.  It will reach your audience with an authenticity that will resonate.

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