The value of a brand

Today’s Slaw post:

We all know that brand logos and names can be valuable assets and powerful promotional tools. Research has shown that children as young as 2 years old can recognize certain logos.

Some are created by company founders on their own, and some are the result of intensive work by advertising agencies. Pepsi spent a million dollars on its latest logo redesign. Nike paid a graphic design student $35 for its swoosh design.

These, and other interesting facts on designs are on this infographic published by


Review of Famous Business Logos: From Firefox To Apple
Prepared by | Author: Alex Hillsberg | See our Facebook

Is custom satellite imagery or crowdsourcing in your future?

Todays Slaw post:

Digital Globe, a commercial satellite image company, has started a crowdsourcing campaign to help find the missing Malaysia Airlines Flight 370.  You can go to their Tomnod site, look at satellite imagery of where the plane might be, and tag anything that may look like wreckage or life rafts.

It doesn’t seem that long ago that satellite imagery, especially high resolution near real time imagery, was exclusively for government spy agencies.

Now anyone can obtain up to date satellite imagery with remarkable resolution. (The best resolution is still reserved for government use.)  If a recent image is not available to suit your needs, you can actually request a custom image of the location you are interested in – satellite tasking options  are available to order a specific image that will be taken within hours.  Another option is to use your own drone, or hire someone with a drone, to take aerial images.

Are there situations where lawyers might want to obtain or use this kind of imagery?

Are there situations where lawyers might use crowdsourcing to help find evidence within satellite imagery or other large volumes of public data?

Legal thought leaders needed for only $15,000

Today’s Slaw post

A few months ago I questioned whether there was any worth in a lawyer paying for an enhanced profile on legal lists.

I got a call recently that topped that concept.

The call was from a publisher in England. They started off by talking about their publication read by thousands of CEOs around the world. And an upcoming edition that was going to feature a global CEO survey on social media risk from a major accounting firm. They did their best to promote this as a high profile publication.

Then they said they wanted to do a companion article to get a perspective from a lawyer with social media experience, and asked if their writer could contact me to ask some questions.

So the wheels start turning. Is this for real or a scam? Is there any reason I should / should not do this? Might this be a good promo opportunity? Might this be a good investment of my time?

Then reality hits – and the answers become clear. For the privilege of being interviewed, I have to pay a fee of 7900 pounds – about $15,000!!!

Really? Are lawyers and other professionals that gullible that they will actually pay that kind of money to be featured in an article? And the publication actually expects an expert to pay them to give their article credibility?

Sadly the fact that these types of businesses exist tells me that lawyers and other professionals are indeed that gullible.

Is being an expert or thought leader not something one earns, rather than purchasing for a price approaching a small car?

Forget earning your place as a thought leader – for the price of a small car, you too can find your place among them.

Have you ever suffered from Formitis?

Today’s Slaw post:

Formitis [form – eye – tis] To cling blindly and unwaveringly to a document while ignoring reality.

OK – I made that up – but lawyers and clients often get frustrated when the other party to a document steadfastly refuses to change something that makes no sense.  It may be presented as a standard form they can’t change, or that their corporate policy dictates that form be used, or they may be reluctant to get legal or senior business advice.  On the other hand, the person resisting the change may just be lazy and not want to deal with it.

I’m talking about substantive terms that clearly don’t belong in the context of the actual business arrangement.  For example, a US buyer who refuses to remove a clause requiring a Canadian manufacturer to comply with US labour and environmental laws.

Forms and standard contracts are great tools – but don’t be a slave to them.

Some CASL Clarification

Todays Slaw post.

CRTC and Industry Canada representatives provided some insight into their thoughts on CASL (the new anti-spam law that kicks in July 1) in an IT-Can forum on Monday.

To come under the complex CASL rules, the email must be a “commercial electronic message” or CEM.  It does not take much to cross that threshold.  An example of a law firm emailing details about a new court decision was discussed.  If a pure case summary was part of or attached to an email (eg The Supreme Court of Canada today released a decision that decided…), and the email had a standard footer that includes a logo and link to the law firm’s web site, then the wording of the act is broad enough that the mere link makes it a CEM.

The regulator’s view was that while technically you could interpret that as a CEM under CASL because of the link, they would not consider that of a commercial nature. But all it takes to turn that into a CEM is any hint of a promotion of the law firm’s services, such as a sentence that says “We can help…”

In practice, mass emailings may be the easiest type to deal with, as CRM and mailing tools are available to manage the process and track permissions.

The daily emails that employees of organizations send will be more difficult to deal with.  Knowing the difference between sending an email that is OK to send because it is not a CEM or is a routine customer interaction, one that requires some sort of consent and an unsubscribe mechanism, and one that you simply can’t send at all, will not be easy for the average person doing their jobs.

Sochi Olympics – Social Media for Personal Use Only

Today’s Slaw post:

The limitations and restrictions regarding social media use during the 2014 Winter Olympics Games continue to be controversial.  While the International Olympic Committee (“IOC”) has eased up on their social media restrictions over the years, the IOC guidelines are fairly similar to the guidelines provided for the London 2012 Olympic Games.

(So no apparent extra control over social media as compared to prior Olympics – unlike allegations that participants and athletes will face the most invasive and massive surveillance ever, including monitoring of all communications, and allegations that it is the most corrupt Olympics in history. )

Take a look at the IOC guidelines for participants.

The IOC states that it: “Actively encourages and supports athletes and other accredited persons at the Olympic Games to take part in social media and to post, blog and tweet their experiences.”

At first glance the IOC, and in turn the Canadian Olympic Committee which follows the IOC guidelines, support the use of social media.  However the guidelines state that neither an athlete nor an accredited person can act as a journalist during the games, unless they are at games as an official journalist.

The guidelines make it clear that they cannot make any commercial use of social media, images or video taken at the games.

Nor can they use professional equipment to record images or video, which includes a ban on the use of tripods and monopods.  While they are allowed to post photographs they take at Olympic venues on social media, any video must be for personal use only and is not to be posted on social media.

Even accredited print journalists are prohibited from using professional video equipment and posting video.

Spectators are subject to similar restrictions as athletes.  The 23 page Ticketing Terms and Conditions (pdf) state:

Still images taken by spectator may be shared privately and are exclusively for personal, non-commercial purposes. Video recording can be made only with the use of domestic handheld cameras.  Images, videos and sound recordings of the Games taken by a spectator cannot be used for any purpose other than for private, personal, archival, non-commercial purposes i.e the Spectator may not license, broadcast or publish video and/or sound recordings, including on social networking websites and the internet more generally, and may not exploit images, video and/or sound recordings for commercial purposes under any circumstances, whether on the internet or otherwise, or make them available to third parties.

The hype of the Olympic Games, these limitations, and the controversy surrounding social media use in the past (two athletes were expelled from the 2012 London Games for social media faux pas) will no doubt add to various controversial aspects of the games this February.

Deloitte 2014 TMT predictions

Today’s Slaw post:

Deloitte publishes TMT (Technology, Media and Telecommunication) trend predictions each year.  Deloitte’s Duncan Stewart does a series of public presentations on the predictions, which is worth seeing if you have the opportunity. The entire list is interesting, but here are some that might be relevant to lawyers.

Consumers will spend more than $3 billion on wearable computing, including smart glasses, watches, wristbands, and clothing.  Wearables will become more popular as the tech improves, designs improve, and prices come down.

MOOCS (Massive Open Online Courses) will be up 100% over 2012.  The growth may not be as big as some media hype, but in the long term will grow enormously.  Will legal education be provided this way, or is the market too small and the players too conservative?

Phablets (smartphones with screens of 5″ or more) are here to stay.  These hybrids between smartphones and tablets will be 25% of the global market, though only 15-20% in Canada.

Social Media – the same thing only different

Todays Slaw post:

Two articles I noticed this morning emphasize that while social media can bring its own set of legal issues, sometimes its use can have the same consequences as any other form of publication.

The first is a CBC news report that a man has been charged with criminal harassment for his tweets.  He was charged a couple of years ago for derogatory and threatening messages.  The case is now at trial.

The second is a post at about a decision regarding an employment non-competition clause.  It was alleged that the defendant had contacted customers in violation of confidentiality obligations.  The court found no liability in this instance, and mentioned in passing that “the information was all publicly available and obtained from such sources as social media websites.”  One question that raises surrounds LinkedIn connections and facebook friends.  If the employee in question, or indeed other employees, have people who work at their employer’s customers as connections, does that take away from any otherwise confidential aspect of the employer’s customer list?

CASL – Bah Humbug to holiday greetings

Today’s Slaw post:

We all receive – and many of us send – electronic holiday greetings this time of year.  They can range from a simple email to animated cards to elaborate videos.

Next December the new anti-spam law (aka CASL) will be in force.  Depending on how we send holiday greetings, what is in them, and who we send them to, CASL will act like the Grinch to classify some of them as spam, and make the sender subject to a massive fine or other remedies.

Figuring out whether a Christmas card is spam, like any other electronic message, will not be easy.  That is going to be one of the most frustrating and burdensome parts of the legislation.

If one of the purposes of the greeting is “to encourage participation in a commercial activity”, then it is spam.  The boundaries of that are not clear, but it is clear that it doesn’t take much to cross it.  I suspect many holiday greetings from law firms or business would be considered somewhat promotional and thus be considered spam.

So the first challenge will be to design messages that are not commercial.  While most corporate cards are primarily meant to offer genuine good thoughts, there is a promotional aspect to them as well.  Would, for example, our Harrison Pensa card below that links to a web page be considered commercial?

If it might be of a commercial character, then you have to look at every single person you send it to determine if they fit within one of the many exceptions.  My spam isn’t necessarily your spam.  The family and personal relationship exceptions may surprise many in the narrowness and complexity of application.  The implied consent exceptions are numerous but technical.

CASL will push many corporate holiday greetings into centrally managed databases and out of the hands of individual lawyers or employees.  So basically, one has to engage a lawyer to determine what your Christmas greeting can say, and who you can send it to.  Bah Humbug.

Anti-spam law regulations

Todays Slaw post:

I just listened to an IT.Can teleconference with Barry Sookman commenting on the final anti-spam regulations.  This post summarizes a few key issues that arose.

As you probably know, the CASL regulations are now final.  The anti-spam portions of the act come into force on July 1 2014.  This is a shorter grace period than many had expected.

Many business were waiting for these regs before figuring out how it affected them.  Unfortunately the regs did not remove most of the compliance burden.  Businesses need to start working towards compliance very soon.

The provisions that deal with permissions required for software do not apply to January 2015.

Private rights of action, including class actions, are not available until Jan 1 2017.  That is welcome, as the thought of class actions with severe potential penalties is a scary one in light of all the uncertainty over CASL’s interpretation.

A RIAS (Regulatory Impact Analysis Statement) was published to try to help with understanding CASL.  Other FAQ type stuff has been and will be published.  These will be helpful, but don’t have the force of law, and in some cases seem to be more restrictive than what CASL and the regs actually say.  Abiding by the RIAS won’t save you if a court or regulator decides to interpret the act differently, but may be helpful to show diligence.

The RIAS tries to help with the definition of CEM, for example.  There had been comments by the CRTC that said even a link in an email was enough to make it a CEM.  The RIAS tries to soften that, but doesn’t help much as while a mere link doesn’t make it a CEM, anything in it encouraging commercial activity will.

Grandfathering of existing consents under PIPEDA are only partially accepted, depending on the nature of the consent.

The exception in the regs re family and personal relationships will be important particularly for small enterprises.  The final regs actually narrowed the definition of family relationships, even though government said they were going to expand it.  Those provisions must be read carefully as the definitions are narrower than most people would think would be caught by the family and personal concepts.

Given the broad definition of CEM and the ban all approach, exceptions are crucial.

The regs include some helpful exceptions, such as those that apply to:

  • B to B communications for existing business relationships.
  • Exclusion of certain messaging systems
  • Messages over certain ecommerce portals
  • Some situations where recipients are in foreign states

The software permission parts don’t come into effect for a year, but the concern is that the CASL effect on software is wide ranging and applies not only to typical computer software, but also to any software that is on any device – ranging from thermostats to appliances to cars.  There will be huge problems complying with those for many reasons. And they are far beyond anything required in any other country.