Tech Law: Is your marketing strategy diabetic?
by Paul Jacobson (@pauljacobson) 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 the recently held 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.
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.
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”?
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.
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