“M”edia Effectiveness.

GENERATIONS OF MEDIA.

How has man (and how have women) communicated, over time, through various forms of media?  To date, I can identify 4 (“four”) separate and distinct generations, each containing at least 1 (“one”) medium of communication.

In the First generation, there were hand signals and other non-verbal cues, and then, there was the spoken word.

In the Second generation, there came smoke signals, various signs and symbols, and then the written word, as accompanied by various forms of courier and postal service.

In the Third generation, came radio, telegraph, telephone, photographs, television, cinema, and video.

The Fourth generation, brought the internet, with email, e-commerce, mass portability (mobile data storage), mass virtualization (online videos and streaming, with very affordable advanced video and audio editing and tools), World Wide Work (videoconferencing), and networking in the extreme (the A through Z of social media and online gaming).

Social Media, I feel are the tail-end of this 4^th generation, and will provide the lead-in to the fifth.  As such, I will focus on media effectiveness in terms of social media; which has, by providing so many avenues for user-generated content, commentary, and feedback, bred “quigaflops”[1] of information that needs to be further stored, catalogued and categorized, and indexed by internet search engines, human search agents and search assistants, and topical fora and discussion groups.  Incidentally, I do see a burgeoning field for search agents and search assistants on the horizon, as the amount of available information on any discrete topic or collection of topics now far exceeds the ability of any single individual to find it all, or to fully digest those portions that they can find.[2]

There are no hard and fast rules in relation to the use of Social Media.  Indeed, many technology early-adopters and commentators alike, tend to describe this Fourth generation as one of unbridled freedom, few rules, and endless promise.  Some of this is true, but there must always be some rules, in order to protect the system against anarchy and rampant abuse, such as spam, cybertheft, and other potential ills of an anonymized virtual world.[3]

Most if not all of the other modern media listed, have their own codes of conduct and ethics, laws, and regulations by which they and their users and members (being accredited individuals and entities capable of input, edit, and propagation), are or should be fully and constantly bound.  I have also written about Cybersecurity in general, elsewhere in this blog.[4]

Dedicated Online Community groups.

Just as there have been 4 (“four”) generations of Media, there are now 5 (“five”) dedicated online community groups, when we speak of Social Media platforms.  These are dedicated to and for Commentary (blogs and wikis, RSS newsfeeds and newsgroups); Connection (email, tweets, Facebook, Myspace); Collaboration (file sharing, remote edit ware, Second Life, Wikipedia); Creativity (shareware, online videos, websites, blogs); and Commerce (e-commerce sites, jobsearch sites, barter sites, Linked in, list servs).  However, all modern communities have their “issues”, and these are really no exception.

User-generated Legality Issues (UgLIs).

These “UgLIs” can range from basic or pervasive copyright infringement, through breach of law in bullying or defamation, to outright theft of trade secrets and intellectual property, and destruction and/or conversion of company property.  In addition, companies with operations in multiple jurisdictions, must avoid running afoul of multiple data privacy, data retention, and intellectual property regimes; especially when involved in transnational litigation.[5]  Whilst the Digital Millennium Copyright Act (DMCA)[6] in the United States gives the website host and ISP some limited protection against liability for the posting by users of material that infringes copyright, with a protocol for disabling or taking the materials down,[7] there is, to date, no similar safe harbor under Canadian law.[8]  We must remember, however, that not all the fault lies in employees[9] and consumers, as some vendors[10] and some contractors[11] have certainly also pushed the envelope of what is lawful and/or decent.  There is obviously a need for every employer, every I.S.P., and every Online Community host to have a coherent, comprehensive, and legally compliant Online Community Usage Policy, in order to guard against some of these UgLIs.[12]  So, how should it look?

Online Community Usage Policy.

I will not go into too much detail, as each entity must structure its policy for coherence, comprehensive coverage, and legal compliance in accordance with its business model, its employee and public audience, and the jurisdiction or jurisdictions in which it principally operates.  The 8 (“eight”) most essential element groupings, however, should remain within the following set model for those employers who have not chosen to duck the issue and place a total ban – albeit rather hard to enforce with the proliferation of mobile devices, a tech savvy workforce, and cloud-sourced or downloadable workarounds of usage and site access monitoring and controls – on all workplace use of social media.[13]  This listing is not comprehensive, and you should consult your own legal counsel for a more proper fit.

1.         Definition of the community.

The community should always be defined.  Is it just workers, or workers and customers?  Are workers to be held to a different and higher standard than customers, or will all be equally covered?  Will there be a hierarchy within the community, such as dedicated senior or managerial employees who will communicate with current and prospective clients and the public to ensure a professional and consistent message, or will any and every employee be able to answer any and every comment or query on the company and its work, without referring the curious to a dedicated public relations group?  All of these matters and considerations should be laid-out, and in very plain language.

2.         Regulatory notices.

Users should be reminded that everything they post will be kept for the minimum time required by law (which time may or may not be disclosed), and possibly longer.  Users should also be reminded that they have agreed (if and when they have so agreed), to avoid intellectual property infringements, link with respect, and accept full responsibility for their own conduct within the community.  Any restrictions on the age of community members should also be stated, as well as a means for community members to certify that they qualify for membership in accordance with same, and any other applicable criteria.

3.         Acceptable community and/or community access platform uses.

Some generally acceptable uses include: market and industry research, communication with actual and potential clients, internal networking and education, and other legitimate company business.  Generally unacceptable uses, include: individual self-promotion, advertising and sale of non-company products or services, harassment or bullying or stalking, accessing or downloading or sharing sexually-explicit material, and violation of applicable law of the jurisdiction of the principal actor or the jurisdiction of a counterparty to the message or communication to or from or with that principal actor.

4.         Mandatory rules.

These would bind all community members, equally, whether or not they were employees of the community host.  In a mnemonic that spells “PROPER”, these 6 (“six”) simple and mandatory rules, may, for example require that every community member at all relevant times, be:

(i) Professional, as in being of good conduct and character, and using decorum;

(ii) Respectful, of the persons, and the views and intelligence of others, by not engaging in misrepresentation, or posting unfounded claims or derogatory matter;

(iii) Observant, to opportunities to make a positive contribution, threats to one’s personal integrity or an employer’s reputation, and outright provocations;

(iv) Protective, of confidences, copyrights, coworkers, the company, and the values of that online community to the extent that they do not conflict with company policy, or applicable law;

(v) Ethical, in adjusting their conduct to abide by applicable laws and regulations, company policies, and applicable codes of conduct;

(vi) Responsible, in being transparent and honest, and showing restraint.

5.         Advisories and cautions.

Here, a gracious and conscientious host may well include any advisories or cautions specific to that community or industry, or community access platform.  For example, a community host for Commentary may include advisories to check the facts before passing information along.  Community hosts for Connection, Collaboration, and Creativity, may well also include cautions against opening messages and attachments from unknown senders, or rushing to use downloadable applications that have not yet been rated, or that are not presented with certifications that they are fee of malicious code.  A community host for Commerce, may also advise against sharing or over-sharing personal information and financial information that could feed any identity theft ring; to use caution and commonsense when doing business with unseen and/or unknown vendors; and with an advisory to use a known financial or other money escrow and transfer entity, as the intermediary to transfer funds in any online deal.

6.         Transitional or tangential laws and policies, and third-party disputes.

There may be additional laws and policies that apply, such as a Privacy Policy, a Data Retention Policy, and so forth, as well as any mandatory notices to employees or customers that must be made in accordance with law.  These may be included and presented in appropriate detail under this section.  A community host may also wish to advise community members to keep their third-party disputes out of the public community eyes and ears, in order to avoid distractions, the taking of sides, a de-valuation of the community experience for other users, and a creeping or sudden loss of community traffic and reputation for lacking in focus on its core mission.  Statements and posts made on the community in relation to such a third-party dispute, may also and needlessly drag other community members and the site host into that dispute; with additional time, expense, inconvenience, and sundry and assorted unintentional repercussions further along the line and in due course of time.

7.         Implications of offsite conduct.

There will be certain instances where an employee’s conduct outside work, or the conduct of a community member when outside the community or if related to the community, may carry the risk of a negative impact on the work, morale, customers or standing of the employer, or of the community host.  Some community hosts may choose, without running afoul of any freedoms such as of speech or communication or association or the like, or NLRB rules,[14] as applicable, to place some restrictions on what employees can do on their own time, or the host may also move to create and publicize and assert rights to block and disable content, and to suspend or terminate access rights, on moral, or public policy, or other claimed grounds.

8.         Complaint and escalation procedures.

There must be a user-friendly complaint and escalation procedure; both for internal community users who are employees, and for external users who are not.  Many sites now mandate the submission of an email address, before a moderated or un-moderated comment or message can be posted to the community, as well as ready links for the speedy reporting of spam and/or abuse; ostensibly for purposes of audit and tracking, and ensuring best practices in community conduct and host moderation.  In those jurisdictions where it is available, a statement of the policy and procedure for disabling or removing offending content may also be included in this section.  In addition, all users may further be reminded that the host retains the right and duty to alert law enforcement or other appropriate proper authorities as to any suspected or actual or alleged violations of applicable laws, regulations, or human rights codes; whether with or without advance warning, and whether with or without removing or disabling or sequestering any offending content found in, or otherwise accessible or passed through, the online community.

Media Effectiveness, audit, and tracking.

Returning to the original topic of “Media effectiveness, audit, and tracking”,[15] one can clearly see that proper use of Social Media can assist in advocacy and building coalitions (ABC) around issues, products, or services.  It can also help to better focus, manage, interpret and apply surveys, contributed articles, and write-in contests (SCAW) for online marketers, opinion-makers, and other community members.  Even in the workplace, those well-motivated employees who have been trained and remain as, respectful and “Proper” in their online community usage, will elicit fewer ethical complaints and resultant requirements for re-training.  Media messages and related regulations have been “yelling issues” that required our most urgent attention for quite some time, now, in the realm of social media.  However, few if any concerted efforts have been made to address them in a comprehensive and cooperative and transnational way.  If every regulator still wants to be supreme across the entire World Wide Web,[16] then the current chaos, with its overlapping and conflicting standards, will simply continue ad infinitum.

One recent development that just goes to show the problems with lack of social media standardization and the real dangers of regulatory “Mission Creep”, is a case in the U.S. State of Virginia, where the state bar is attempting to sanction a Richmond-based criminal defence lawyer, Horace F. Hunter, Esq., for his blog, primarily on the grounds that it constitutes in their view, not “news and commentary”, as Mr. Hunter claims and as do a number of concerned and influential onlookers intervening on his behalf, but “attorney advertising”.  Hence, it does not contain sufficient disclaimers to that effect; amongst other allegations.[17]  I have spoken with Mr. Hunter on this matter, and I and a number of other onlookers feel this to be overreaching by the Virginia State Bar.  Are lawyers to all become like radio stations with periodic, flashing neon station identifications and disclaimers gliding across blog pages to interrupt readers; or, will TV news broadcasters be next, in being forced to state that their news and commentary is not advertising, and is not presented with any intent to create loyal viewers; after always telling them: “stay tuned for more, after these messages!”, or “you can always rely on Channel (insert #) News for the best in …….”?

Where will it stop?!

The Virginia State Bar will undoubtedly make a ruling in this case, that the first reviewing court will or will not uphold.[18]  Then, we shall see how far up the courts things progress, or whether the American Bar Association (ABA), or the American Association for Justice (AAJ), or state Supreme Court Chief Justices across the country, or any combination of these, can timely and pre-emptively come together and act to prevent a flood of similar conforming and conflicting events across the length and breadth of the United States, by forming and implementing a model or uniform “Code of Conduct and Best Practices” for attorney blogs, with clear and workable definitions, from which others can take solid pointers in order to remain well within the available safe harbor it provides.

Summary.

Only with rules that are understood, achievable, and enforced, can social media be most effectively used, audited, and tracked by and within an organization.  Our many media of communication will continue to change within and amongst their generations, as they always have, and thereby also become more, or less “social”.  The job of employers and users and regulators, alike, is to adapt or become disconnected from and demotivated about, the “quigaflop trough” we have all grown to need, and into and from which others who are and remain more adept and adaptable, will all (and doubtless, for long), still feed to their hearts’ content.

Author:

Ekundayo George is a Lawyer and Strategic Consultant.  He is a published author in Environmental Law and Policy and an avid blogger across several fields; licensed to practice law in multiple states of the United States of America, as well as the provinces of Alberta and Ontario in Canada; and he has over two decades of solid legal experience in business law and counseling, diverse litigation, and regulatory compliance.

Hyperlinks to external sites are provided as a courtesy and convenience, only, and no warranty is made or responsibility assumed for their content, accuracy, or availability.

This article does not constitute legal advice or create any lawyer-client relationship.

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[1] A “Quigaflop” is a term coined by me to describe the universe of currently available data, in terns of its origin and nature.  That is “quantité inconnu, internally-generated, implanted and germinating additional” flops of data.  Taking it by portions: Quantité Inconnu, means of an unknown quantity, in the French language.  Internally-Generated, means generated by any or all of users, members of a group or forum, webmasters and bloggers, or system created data for purposes of analytics, metrics, and for supervision, control and data acquisition (SCADA) purposes.  Implanted and Germinating, means feedback from visitors to a website or blog, a user-group, a remote diagnostician, or a rogue with malicious code, that enters the system, and invites more input, or otherwise builds upon itself; all creating “additional” flops.

[2] BBC Interview of Dr. Engineer Lim Goh, CTO of SGI.  Data dilemma: Massive data is the challenge, says SGICTO.  Available at:  http://www.bbc.co.uk/news/business-12842944 (Visited on April 23, 2011).

[3] Juliann Francis.  U.S. Unveils Plan to Shield $10 Trillion Online Marketplace.  (Visited on August 2, 2011). http://www.bloomberg.com/news/2011-04-15/u-s-unveils-plan-to-shield-10-trillion-online-market-by-2021.html

[4] Ekundayo George.  Cybersecurity: Avoiding Destablilizing Data Disaster (D3).  (Published on September 1, 2011).  https://ogalaws.wordpress.com/category/strategic-consulting/cybersecurity/

[5] Anthony J. Diana and Therese Craparo.  Managing International Data Privacy Concerns in E-discovery. Mayer Brown LLP. Electronic Discovery & Records Management . July, 2011 Tip of the Month: (Visited on October 9, 2011). http://www.mayerbrown.com/publications/article.asp?id=11360&nid=6

[6] December 1998.  Digital Millennium Copyright Act of 1998; U.S. Copyright Office Summary.  (Visited on October 9, 2011).  http://www.copyright.gov/legislation/dmca.pdf

[7] NGR.  DMCA Takedown Requests Effect Usenet Completion.  http://www.ngrblog.com/usenet-dmca-takedown-notice/November 19, 2010.  (Visited on October 9, 2011).

[8] The original impetus for passage of the U.S. Digital Millennium Copyright Act was a need to implement the 1996 World Intellectual Property Organization (WIPO) Copyright Treaty, and the 1996 WIPO Performances and Phonograms Treaty.  Canada’s most recent attempt to accomplish the same feat in 2010 (the Copyright Modernization Act of 2010) did not succeed, as Parliament ended before it could become law. Bill C-32: http://www.parl.gc.ca/content/hoc/Bills/403/Government/C-32/C-32_1/C-32_1.PDF).  This, unfortunately, also happened twice earlier, with C-61 (2008) and C-60 (2005).

Bill C-61 of 2008: http://www.parl.gc.ca/HousePublications/Publication.aspx?Docid=3570473&file=4. and Bill C-60 of 2005: http://www.parl.gc.ca/HousePublications/Publication.aspx?Docid=2334015&file=4).  Since 2010, no new purported Bill for copyright modernization in Canada has been re-submitted to the Federal Parliament for consideration or debate. Government of Canada.  (Visited on October 9, 2011).

[9] Ekundayo George.  Fired (and Reinstated) for Surfing Pornographic and other Websites at Work.  https://ogalaws.wordpress.com/regulatory-and-govt/

[10] Canada acted against vendor spam in Bill C-28 of 2010, with Royal Assent on December 15, 2010 and a full title of: An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.  Available at: http://www.parl.gc.ca/HousePublications/Publication.aspx?Docid=4901869&file=4

[11] Kim Zetter. Couple Can Sue Laptop-Tracking Company for Spying on Sex Chats.  Wired Magazine,August 30, 2011. Threat Level.  Privacy, Crime and Security Online.  Visited on August 31, 2011.

http://www.wired.com/threatlevel/2011/08/absolute-sued-for-spying/

[12] At the same time, in the United States, at least, or regarding U.S. operations and US-based employees, those attempting compliance should try very hard to avoid running afoul of applicable National Labor Relations Board (NLRB) safe harbors for protected “Concerted Activity” of employees when discussing certain workplace-related issues in a social medium.  Writing in this case, the NLRB established that the proper test for concerted activity is whether said activity “is engaged in with or on the authority of other employees, and not solely by or on behalf of the employee himself”; or includes “individual activities that are the logical outgrowth of concerns expressed by the employees collectively”, or that occur in those “circumstances where individual employees seek to initiate or to induce or to prepare for group action”; or show that individual employees are attempting to bring “truly group complaints” to the attention of management.   This was to address a rash of “Facebook firings” whereby certain employees were terminated for their online posts.  See NLRB, Office of General Counsel Advice Memorandum, dated July 7, 2011, on Case No.: 13-CA-46689.  Available at: https://www.nlrb.gov/case/13-CA-046689 (Advice Response Memo). Visited on August 21, 2011.

[13] The Wall Street Journal Digital Network.  Hacking Fears Prompt Workplace Social Media Ban.  Tech Europe.  September 6, 2011.  Visited September 8, 2011.  Available at: http://blogs.wsj.com/tech-europe/2011/09/06/hacking-fears-prompt-workplace-social-media-ban/.  Having become so accustomed to using social media that they see it as an entitlement, 43% of European and Japanese workers answering a recent online survey stated that a social media ban in the workplace would leave them disconnected from work, demotivated, move to work around the block, or even leave their employer.  Independent researchers and commentators also and occasionally publish “exploits” and “vulnerabilities”, in an effort to encourage better security practices.  However, the speed at which loopholes can be closed before mischief is done or the key used elsewhere, is debatable.  Jim Finkle. Amazon Cloud can help hack WiFi networks: Expert. Friday, January 7, 2011.  Available at:  http://www.reuters.com/article/2011/01/07/amazon-hacking-idUSN0720519720110107 (Visited on May 8, 2011).

[14] See Supra. Note 12.

[15] Ekundayo George.  About (point 4).  Available at: https://ogalaws.wordpress.com/about/.

[16] Leigh Phillips. March 16, 2011. EU to force social network sites to enhance privacy.  ‘Right to be forgotten’ would ensure users of Facebook and other sites could completely erase personal data.  Available at: http://www.guardian.co.uk/media/2011/mar/16/eu-social-network-sites-privacy (Visited on October 7, 2011).  US and EU views and laws on privacy, are and remain at opposite ends of the spectrum.  See e.g. Greg Sterling.  August 11, 2011.  Reputation And The Right to Be Forgotten”.  Spain’s Radical Approach to Search and Personal Privacy. Available at: http://searchengineland.com/reputation-and-the-right-to-be-forgotten-spains-radical-approach-to-search-and-personal-privacy-89133 (Visited on October 9, 2011).

[17] Catherine Ho.  Virginia State Bar’s crackdown on lawyer’s blog raises questions.  Washington Post, Capital Business.  October, 2011.  http://www.washingtonpost.com/business/capitalbusiness/virginia-state-bars-crackdown-on-lawyers-blog-raises-questions/2011/10/03/gIQAYsufYL_story.html  (Visited on October 11, 2011).  On the other hand, at least one commentator has accused Ms. Ho of sensationalism.  See e.g. Kevin O’Keefe.  Washington Post creates needless scare about lawyer blogs being outlawed by state bars. October 10, 2011.  LexBlog. Real Lawyers Have Blogs.  http://kevin.lexblog.com/2011/10/articles/blog-basics/washington-post-creates-needless-scare-about-lawyer-blogs-being-outlawed-by-state-bars/  (Visited on October 11, 2011).

[18] The Virginia State Bar had initiated official disciplinary proceedings against Mr. Hunter on September 10, 2010, to which he responded on September 21, 2010.  Mr. Hunter then filed suit for injunctive and other relief in the Federal District Court for the Eastern District of Virginia.  The presiding Federal District Judge, The Honourable Justice John A. Gibney, dismissed Mr. Hunter’s suit in a Memorandum Opinion dated May 9, 2011, in order to let the Virginia State Bar (an arm of the State of Virginia), make its disciplinary ruling and have the first word.  The original date for Mr. Hunter’s disciplinary hearing before the Virginia State Bar has now also been re-set from June 10, 2011, to October 18, 2011.  Horace F. Hunter v. Virginia State Bar, et al., Civil Action No. 3:11 -CV-216-JAG.  Available at: http://valawyersweekly.com/wp-files/pdf/011-3-265.pdf (Visited on October 12, 2011).