Monday, February 21, 2011

Gingell 2.0

A new year and a new me..... Gingell 2.0

After 5+ years of private practice with Foot Anstey I am leaving on the 25th of February to take up the position of Head of Legal Affairs at the Mike Burton Group.

As such my blog will be taking a break whilst things re-focus and I would like to thank all those who have contributed over the last few years.

Wishing you all the best for 2011 and beyond.

Thursday, December 23, 2010

Social Media in Regulated Sectors

An article I wrote for Money Marketing magazine, first published on 9th December 2010:

Much is being written about the potential rewards of social media, but after some high-profile PR slip-ups, many are addressing the risks associated with business and employee participation in social media, particularly if you operate in regulated sectors. The first complaint that refers to a firm’s Twitter messages or Facebook page may not yet have hit the headlines but it cannot be too far away.


In a business context, social media is a communication tool that helps with conversations between a business and individuals who may or may not be customers, so it can be a promotional and a customer relationship management tool. The potential for communicating with new audiences is huge, particularly for a service sector such as IFAs where this relatively low-cost medium is a great opportunity to communicate quickly and cheaply with previously difficult to reach potential customers

The FSA has stated its rules and guidance apply in a way that is “media-neutral”, so the rules will apply to mobile phone apps and any future new media as they do to more traditional methods of communication. Issues of risk must be covered and the overall principle of “fair, clear and not misleading” applies.

All businesses need to bear in mind that characteristics of social media platforms can serve to increase risk if not managed correctly. These multipliers include immediacy of communication, the viral nature of the platforms, transparency and ability to search for conversations and the global and open nature of the communications.

On Twitter, for example, you can only message in 140 characters or fewer. Does this give you sufficient space to cover all issues? If you retweet a message from a bank’s social media profile about its new mortgage product, are you recommending that product, or do you even have space to make it clear you are not?


With increasing complexity and particularly searchability of social media, users need to realise these communications, although perhaps not designed for wider public viewing, often end up that way. Tweeting is quicker and more casual than sending an email but has a potentially wider audience and can present greater risks.

If the potential rewards of social media for IFA businesses are to be fully realised, these risks must be managed through a combination of empowering the right people within the business, training these people to appreciate the risk points and the etiquette, putting in place internal and external procedures for problem management and if you are outsourcing these services to a third party, make sure your have robust and clear terms in place.


My top tip before jumping into the social media melee is to take a step back and set clear objectives about what you want to achieve. This will allow you to determine if the time investment required and increased risk represent a good deal for your business.

Friday, December 10, 2010

Which is King - Data or Content?

Content Data is King?

The saying used to be that 'content is king' in the media industry.  Content is of course important, but has it's throne been taken by data that is generated by users and readers of that content? 

Image: jscreationzs / FreeDigitalPhotos.net

In a previous post "Data is the new Oil" I mentioned that social media platforms and profiles are a goldmine of data for an advertiser or a business undertaking research.  Users input their preferences, likes and other habitual comments all of which is valuable data to an advertiser.  This may even extend to a users location on platforms like Foursquare and Gowalla.

Obviously, this data has a value and will be exploited by the platforms that collect it  (that is the basis on which they provide users with a "free" service) but this will stir emotions with the users who provide the data - think Facebook and privacy settings.

With the value of data apparent and on the edge of mass exploitation, the battle lines will be drawn to protect these assets.

These battles will be between the platforms that collect and commercialise data with others that look to exploit it without being part of their revenue model.  There may also be civil wars between apps for platforms where data is being extracted at no cost via APIs.

Whether copyright or database right will be the WMD of choice in battle remains to be seen and a number of questions have been recently referred to the European Court of Justice to clarify the legal protection for databases.  The case is:  FOOTBALL DATACO LTD & 5 ORS v (1) YAHOO! UK LTD (2) STAN JAMES (ABINGDON) LTD (3) STAN JAMES PLC (4) ENETPULSE APS (2010)

I have speculated why people (including myself) provide all this valuable data to these platforms.  My view is that they provide it so that we can create content, interact with content (think youtube, pictures of Flickr and Facebook) and utilise a free communication tool. For me, the quality of the content will determine the data that I provide - ie if 'Like' something it will have to be good!

Therefore, content and data can seen to be symbiotic and equally important.  Good content will drive data and in return the revenue generated should increase investment in content.

So in summary I think it is fair to say that data (filtered and distilled) is the key to monetising web £2.0 and beyond but that useful data is only generated when people interact with, and generate content.   

Traditional media (if there is such a thing anymore) still produces some of the best content in the web space and they are finding that traffic is driven through social media.  These organisations look well placed to increase digital revenues by exploiting content and data together.

Thursday, November 11, 2010

Outsourcing and Social Media

Outsourcing of business processes and activities can cut costs, spread risk and allow access to best industry practice. Whatever the business motivation or objective there are number of key considerations, not all of them contractual.

Typically IT services and Customer Service centres have been the first to be outsourced but now there are a new breed of real-time web based services that are being handed over to third party providers.

One of the most interesting of these services being outsourced is a business’ Social Media communication.

Social Media is in essence a communication tool that facilitates conversations between a business (or its employees) and individuals who may or may not be customers. In that respect social media can be seen to be a Customer Relationship Management (CRM) tool.

If a business outsources social media and allows the service provider to communicate with customers and potential customers on its behalf, it is trusting the supplier with both the reputation and voice of the company. This creates to challenge of how to extend your corporate voice, and even corporate culture to a third party service provider?

Setting boundaries and communication guidelines for the provider will assist but I suspect ‘due diligence’ in relation to corporate values or culture will be much more important than the traditional commercial due diligence. Perhaps appointing a provider with similar corporate values/culture training should be the primary criteria with joint training and recruitment a close second.

The other uncertainty is how you cost such an arrangement and measure its success. Key performance indicators and usage models are used but more frequently the question is being asked should charges be focussed on defined outcomes rather than quantifiable usage. Obviously, defined service levels and outcomes can be difficult in the social media context particularly if the platform is discontinued or unavailable. Twitter often crashes (and displays the ‘Twitter whale’) when it is over capacity – this would play havoc with defined response times using that medium.

Whilst it may seem pessimistic to discuss it at the outset, exit is still one of the most important contractual areas in outsourcing. For example, do you receive the username and passwords for the social media profile on exit and will there be an automatic transfer of the outsourcing providers employees on migration to a second generation supplier? Such an event could easily happen under employment law.

Behind the scenes outsourcing is all about relationships, managing change and commitment to making it work. The really successful ones work as a partnership with continuous communication – the agreement should set the expectations and understandings out clearly. Of course, there will be a terms to apportion risk and set out who is responsible for what, but there is a wider commercial and brand alignment picture that can not be ignored in the online world.

Friday, November 05, 2010

Copyright, the Prime Minister and Likeminds

This time last week I was attending the Likeminds conference concerning creativity and curation during the digital age. Andrew Dubber was speaking and giving a rousing call to change copyright laws to prevent hoarding of works without publication and to create an online digital archive.  A 'use it or lose it' kind of approach with a central repository for the greater good.  It was difficult to disagree with the majority of his argument and made me consider "licences of right" that can be granted under design and patent laws if they are not used.  The problem with copyright in the UK is that it is created automatically without the need for registration - administering such a scheme would be a huge burden.


Image: Nicholas Tarling / FreeDigitalPhotos.net

Then on Thursday Prime Minister, David Cameron, announced  (as reported on the BBC website) that

"... I can announce today that we are reviewing our IP laws, to see if we can make them fit for the Internet age. I want to encourage the sort of creative innovation that exists in America."

This is a positive statement and I agree that the UK must increase its innovation economy but I don't think that simply changing IP laws is enough.  The UK needs to create the right mentality, financial incentives, working environment and support networks to foster not just innovation but entrepreneurship.

In relation to Copyright my view is similar to Laurence Kaye's who says that the current copyright regime is 'fit for purpose'.  He adds that we need technology solutions rather than changes to the law to enable quick and cost effective clearance searches and licensing.  
 
It seems to me that to facilitate such a solution we would need a system of registration or perhaps "tagging" for digital copyright works that could have a searchable database.  This would also allow a system of "licences of right" to be implemented for copyright.  My view is that we need a mixture of technological and legislative developments to make Intellectual Property laws not just fit for the Internet but for all digital platforms such as mobile apps. 
 
This is going to be a tricky balancing act for the government with numerous competing interests and a new generation of consumers who are undergoing a psychological shift in attitude to copyright piracy.   I also think that any changes will need to be global rather than UK specific. There is little point in changing UK laws if any start up company can not take advantage of this change in the global market.
 
I am watching this space carefully as any radical change in IP laws would hopefully create a flood of new and exciting start ups.

Wednesday, October 27, 2010

Viral Marketing - the boring legal answer is ....

There are lots of reasons why viral marketing campaigns do not pass go when it comes to legal.  It could be
copyright and trade mark infringement, passing off, defamation or any number of other reasons why the campaign would not get legal sign off.

From March there will be even more reasons for UK legal teams to say no to viral campaigns with the application of the CAP code to online space controlled by a brand including social media communities.  At the cornerstone of the code is the requirement that the advertising must be legal, decent and honest.  It also states that an advertisement must not mislead or offend.

Can anyone say that some of the more "edgy" viral marketing campaigns would comply with the code?

Obviously every campaign has to be looked at on a case by case basis and if the legal answer is "no" or "don't do it" then this is likely to be technically correct, but is it the commercial answer?

I am not advocating ignoring sound legal advice or breaking laws but there is a bigger commercial picture when it comes to viral and what is needed is participation, understanding and communication between legal and creative from concept on.  This will help guide the creative process but also allow the account teams to manage the client's expectations.

Friday, October 01, 2010

Online Brand Protection determined by Return on Investment?

This week I attended a conference concerning Online Brand Protection. The speakers and panelists where in-house lawyers from some of the biggest brands in the worlds including Coca-Cola, Mars and Cisco.


Image: Boaz Yiftach / FreeDigitalPhotos.net

It was fascinating to hear how some of the most valuable brands in the world protect their assets in the ever expanding digital and online spheres.

One of the main themes I distilled is that most of these brand guardians appreciated that there was, in part, a loss of brand control created by the internet revolution and that there is no way to stop all abuse.  I believe this is a shift in attitude concerning how online brand abuse is approached.

The focus for many at the conference was to identify and remedy the brand abuse that is causing damage to the company's bottom line.   In effect calculating the return on investment for taking action to remedy online brand abuse as a means of justification and prioritisation.  The speaker from MarkMonitor provided some simple equations for calculating lost sales which can be used to show what the financial benefit would be from a successful remedy.   If legal action or advice does not add value to a business why is the contract being negotiated or legal action being taken?  This is a question I always ask.  The calculation of return on investment also allows a business to match the remedy to the damage being done allowing it to take a considered and proportionate action. 

The traditional remedies for brand abuse were discussed at length but there were some interesting alternatives being thrown into the frying pan of options.  One of the most interesting approaches is being taken by GHD (the hair straightener company) who are attempting to educate consumers about brand abuse and counterfeits via their website and digital presence.  They have a counterfeit information page on their website which includes a list of websites selling fakes!

I don't know if this shift in attitude towards online brand abuse and the focus on return is being driven by austerity measures and budget cuts but innovation in technological and PR solutions rather than traditional legal solutions should be encouraged as an extra string to the bow.

One question that does spring to mind is whether it will be easier or more difficult to monitor and remedy brand abuse as we move away from traditional web pages to "Apps"?  Will a brand have to participate and use all relevant Apps to monitor abuse?