Laws are not just relevant after an event

@pauljacobson laws are relevant after an event, culture dictates before.

— Craig Rodney (@Craigrodney) July 25, 2013

Craig Rodney wrote a post I agree with, to a degree, earlier today and which he titled "Cultivating a social culture”. He makes an argument for culture’s primacy as a preventative tool for many risks and I agree with that. Essentially, he argues that engaging with your team and empowering them to make better decisions about what they do online is far more effective than just imposing a social media policy. As he points out towards the beginning of his post –

Tackling the topic of employees and social media is not simple, and thinking that having a social media policy in place will save you is dangerously shortsighted.

At the same time, his argument that culture is the cure is similarly shortsighted. Although he opens the door to some sort of legal framework as part of the solution to employees going off on a tangent and wreaking all sorts of havoc (he wrote his post in the context of employees using social media in problematic ways), his conclusion misses a number of important nuances, highlights fundamental problems with how lawyers generally tend to approach risks and ignores a function of law which, ironically, supports his argument for culture’s importance:

The only way through

The solution is to turn social into a positive strategic objective. Educate and encourage employees to make the most of social media. Teach them the rights and wrongs. Show them successful case studies of amazing social usage, and show them examples of when things go wrong. Empower them to make smart choices, to proudly represent your brand and to grow themselves using everything that’s available online. Give them a directive for effective collaboration.

Or you can try block social media on work computers, pretend that your policy has you covered, and see what happens.

Law is Cultural Code

Professor Lawrence Lessig wrote, in his book “Code”, the following –

Cyberspace demands a new understanding of how regulation works. It compels us to look beyond the traditional lawyer ’s scope—beyond laws, or even norms. It requires a broader account of “regulation,” and most importantly, the recognition of a newly salient regulator.

That regulator is the obscurity in this book’s title—Code. In real space, we recognize how laws regulate—through constitutions, statutes, and other legal codes. In cyberspace we must understand how a different “code” regulates—how the software and hardware (i.e., the “code” of cyberspace) that make cyberspace what it is also regulate cyberspace as it is. As William Mitchell puts it, this code is cyberspace ’s “law.” “Lex Informatica,” as Joel Reidenberg first put it, or better, “code is law.”

Lawyers and legal theorists get bothered, however, when I echo this slogan. There are differences, they insist, between the regulatory effects produced by code and the regulatory effects produced by law, not the least of which is the difference in the “internal perspective” that runs with each kind of regulation. We understand the internal perspective of legal regulation —for example, that the restrictions the law might impose on a company’s freedom to pollute are a product of self-conscious regulation, reflecting values of the society imposing that regulation. That perspective is harder to recognize with code. It could be there, but it need not. And no doubt this is just one of many important differences between “code” and “law.”

I prefer the idea that “law is code”. This idea has pretty much stuck with me since I wrote my motivation to be accepted into Wits University’s LLB program (this was back in the day when an LLB was a post-graduate degree only). I wrote something to the effect that, to me, law was integral to our societal fabric. Today I would say that law is part of and is embedded into our cultural code.

As I understand what Rodney wrote, he suggests there is a distinction between law and culture and the two are largely incompatible, possibly even mutually exclusive, almost like two magnets with the same polarities held together. It requires effort to bring culture and law together and the moment you remove the pressure, the two fly apart. I don’t believe that this is the case at all. I believe culture is shaped by law in varying degrees, just as law is shaped by culture (although at different rates).

Blame the lawyers, I do

This idea of law as being at odds with culture is prevalent in agency environments and its something I think about often. One of the reasons why I think this perception is so widely held and why it frequently leads agencies to steer clear of lawyers is because lawyers have historically been monumental and figurative pains in the butt when it comes to creative work, especially with the emergence of the social Web. The metaphor I have been using a lot lately is this idea of lawyers staging interventions, striding into creative people’s space and kicking over their blocks, telling them what they can’t play with.

Do this enough and you can understand why lawyers are quickly perceived as undesirables and only to be called when the proverbial dark matter hits the fan and you need to bring out the crisis managers (aka, the lawyers). By that time, it usually is more about damage control, recriminations and more fuel for growing distaste for and distrust of lawyers (who wonder why they weren’t brought in much earlier?). I see this happening far too often. I have been the lawyer called in to fix messes for many years.

The thing is, incorporating Legal into a process from the beginning can actually help avoid or, at least, mitigate future issues. Yes, lawyers tend to block creative ideas (even the ones who don’t think they do) and whittle down truly innovative campaigns into a series of iPad giveaways (thanks for the analogy, Rich) and that is rarely the best approach. A far better approach is to find the ways to support those creative stunts agencies come up with. There is often a way to make that happen and to keep modifications to those stunts to a minimum.

It is very possible to implement effective legal frameworks into innovative campaigns, you just need the right people to do that. Unfortunately, and as the part joke, part lament goes, 99% of lawyers give the rest of us a bad name and most lawyers who are brought in to advise agencies and the ones who don’t want any creative people playing with fun toys for fear of the risks involved. What they just don’t seem to appreciate is that risk is inherent in digital campaigns and it is more about managing that risk to acceptable levels. Most campaigns are doable and what is required are similarly creative legal frameworks and models to support them.

Integrate, integrate, innovate

When it comes to employees using social media, social media policies are hopelessly limited in isolation (although this is how many people develop them). They are only really effective when developed in broader cultural and strategic contexts as part of an integrated approach. Calling these frameworks “social media policies” is also a bit dated (that model made more sense in 2010 to 2011 or so when I worked on the first policies of their kind in SA amidst all the original hype around them). Engagement models are changing and the legal frameworks that organisations need are far more complex and interconnected.

If you want to manage the risks of employees using social media services, an integrated approach involving culture, education, empowerment and appropriate (and complete) legal frameworks is the most effective approach. Only talking to your lawyer after “an event”, as Rodney puts it, is too late. Involving your legal team early could prevent the “event” in the first place or likely mitigate the harm. The key is an integrated and collaborative approach, beginning to the end, not one now and the other later.