Tech Law: Digital strategists’ glaring blindspot
by Paul Jacobson (@pauljacobson) Strategy in the digital marketing space fascinates me. Some of the smartest people I have had the privilege of meeting work in this dynamic space and have remarkable insights into human behaviour, and how that behaviour influences and is influenced by the social web and great content.
What I’ve noticed is that even these strategists have a glaring blindspot — they don’t factor structured legal and compliance risks into their planning and modelling. I imagine there are many reasons for this, which likely include strategists’ ignorance of what these risks are and that they may even find the frameworks designed to address them intimidating or downright inscrutable.
The result, unfortunately, is that digital strategists tend to ignore legal and compliance issues in their analysis, leaving their organisations and clients exposed to potential risks they don’t understand and perhaps don’t even realise exist.
The law is complex, and it becomes more and more complex each year due to new legislation (lately, increasingly poorly drafted legislation), new developments, and trends and changing norms which require a lot of skill, experience and focus.
Law informs underlying structure
We live in a society that is structured using a dizzying array of laws and regulations. Those laws may be unfair, unjust or even applied poorly but law informs the underlying structure of virtually everything you do. You are probably not aware of most of it but it is there, nonetheless.
Developing a digital strategy with the goal of improving engagement with a target market, for example, is a tremendous thing and the more skilled the strategist, the more likely the end consumer will see value in a product or service and take advantage of it. Strategists are comfortable to continue like this for as long as disaster doesn’t strike (and, frequently, when it does strike, the response is damage control) but this isn’t a sustainable approach.
I wrote about how diabetes is an interesting metaphor for this approach in my post “Is your marketing strategy diabetic” a few months ago and explained my thinking about this. Here is an extract:
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).
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”?
A digital strategy that doesn’t factor legal and compliance risks into the mix is incomplete. In many respects, it glosses over a series of risks and constraints which generally pose substantial threats to an organisation and its activities.
This exposes the company processing that personal information to penalties under the applicable legislation (POPI has been passed and could be signed at any time), by self-regulating bodies as well as a variety of civil claims. The biggest exposure would probably be reputational harm, which could have a more substantial impact on a company’s bottom line than any fine and the effects will be felt in a matter of hours and days.
An effective digital strategy simply has to take these risks into account if it is going to be sustainable. Strategists have to either expand their scope or supplement their efforts with this increasingly specialised knowledge and insight.