For the London Free Press – August 23, 2010

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Best Buy employee nearly fired for online video poking fun at iPhone consumers

The amusing (though sprinkled with colourful language) iPhone 4 vs. HTC EVO video on YouTube almost cost the creator — a Best Buy employee — his job.

The video portrays an electronics store employee trying to convince a person wanting an iPhone 4 to buy an HTC EVO 4G instead. The video has had about seven million views.

The video was made by Brian Maupin, a 25-year-old from Kansas City, Mo. For the past 3 1/2 years he worked at Best Buy selling mobile phones, something he may decide never to do again. This comes after he was suspended from work and faced threats of being fired.

Maupin explained Best Buy “felt it disparaged a brand they carried (iPhone/Apple) as well as the store itself and were fearful of stockholders and customers being turned off to Best Buy Mobile.”

But if you watch the video, you will see there isn’t any mention of Best Buy at all. The cartoon employee identifies the store as “Phone Mart.” The characters are not wearing anything that resembles the Best Buy uniform and are standing in an outdoor field with a pink tree.

Best Buy recently announced they will not fire Maupin.

“We have completed our investigation into the videos created and posted by Brian Maupin, the aspiring film-maker and Best Buy employee. This is an important situation for us because it involved balancing our social media guidelines with a commitment to creating a supportive environment for our employees. It’s important to note that our investigation involved three videos that were posted in late June because they were openly disparaging of our employees, our customers and our vendor partners. . . . Contrary to rumours, Brian has not been fired, and is scheduled to return to his job.”

But Maupin has chosen to take a leave of absence and is thinking about kick starting his graphic design career.

“I’m not planning on returning to work — immediately, anyway. Honestly, I don’t know how I could return considering some of the things that were said to me and not have a lot of awkwardness on the job. I’m looking at possible jobs in graphic art — nothing definite yet, but I’m searching.”

Maupin has taken a stab at the situation in his most recent video, “TweetFired”.

In TweetFired, a pants salesman at fictitious “Stacks o’ Slacks” gets a stern talking to by his boss because of the tweets he posts on his Twitter account — tweets that have absolutely nothing to do with his job. His boss has apparently been stalking him on social media, and accuses him of “painting a very negative picture of working here in 140 characters or less.”

Internet tools and social media increasingly blur how one’s personal and work life overlap. Employers struggle with the extent to which they may be prejudiced by those actions, whether they should just ignore it, and what legal rights they have over actions employees consider personal.

I was on a panel last night at the Ivey business School with Eli Singer, co-founder of Entrinsic Partners, a digital communications agency that builds corporate social media strategies. 

Eli had many astute observations regarding marketing and social media.  For example:

The choice of social media platform to use is secondary.  A strategy comes first.

Don’t invest too heavily in a particular SM product feature that you can’t control.  When facebook decides to stop the group feature you have spent all your time and money on, you are simply out of luck.

Most businesses really don’t know what they want.  Its partly fear of the new and unknown.  Delegating and abandoning the strategy to a digital native whose sole qualification  is that they use facebook won’t work.

And if you are that digital native that is conscripted to do it – approach it like any business case.

That’s the title of my Slaw post for today.   It reads as follows.

I’m on a panel tonight at the Ivey Business School talking about trends and opportunities in social media.  I’ll be talking about legal and privacy issues.

Some of the risks that come with social media arise from its newness.   There seems to be two opposing (and apparently inconsistent) factors at play whenever anything new arises. 

First, when something new comes along, people often don’t put it in the proper context, and forget all the old rules.  For example, people might make a comment on a blog or facebook that reveals something confidential, even though that same person would never have revealed that in a letter or email.

Second, humans have flawed risk perceptions.  We tend to underestimate the risks of things we are familiar with, and overestimate the risks of things we are not familiar with.  That leads us to be concerned about risks of something new, even if those risks are similar to, or less than, things we are used to.  This leads to the “lets just shut it down” reaction where employers simply block access to things.

These factors lead to some bad decisions on both ends, but also fosters debate and discussion over the issues that tend to sort things out over time.

The response to the policytool that rTraction and I collaborated on has been overwhelming.  In its first week,  over 10,000 people have visited the sites and 1500 different companies have taken the first steps in creating a social media policy.  See rTraction’s post for more details of the response.

And the only thing we did to publicize it was a couple of blog posts and tweets, and a few emails to individuals we thought might be interested.

For the London Free Press – October 26, 2009

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CUSTOMER SATISFACTION: It’s a lot harder to manage online when reputations can be made or smeared by campaigns that may or may not be fair

An old customer service axiom says a dissatisfied consumer will tell eight other people about their experience.

Perhaps that axiom should now say 800, 8,000 or more, given that the Internet has made sharing dissatisfaction easier than ever.

The axiom emphasizes the importance of good customer service for business owners and the danger of even a few irritated customers.

The Internet and all its tools, such as websites, blogs, Facebook, Twitter, and YouTube is a double-edged sword for any entity promoting its brand.

It provides many tools to raise brand awareness and promote goods and services — but it also allows anyone to comment on a brand for all to see. Even brands selling quality goods and services will draw negative comments from someone, somewhere, even if undeserved.

Maytag learned this lesson first hand when a customer who was displeased with attempts to fix her washing machine voiced her displeasure on Twitter. She explained her complaints and asked her 1.3 million Twitter followers to join her in boycotting Maytag.

Though the company was aware of the posting and rectified the situation the next day, the damage was done — the dissatisfied customer had shared her aggravation with a very large audience.

Brands are becoming more about what people think of them, rather than what the brand owner tells people to think about them.

Where brands once could portray the image and message they wanted to represent, they now find themselves reacting to postings from bloggers and tweeters.

Recognizing this trend, tools are being introduced to let individuals comment on products more easily. Google, for instance, has introduced Sidewiki, which allows anyone to comment on anything on the Internet, whether the website owner condones their comments or not.

Sidewiki appears as an overlay on the side of the page that the Internet user is viewing. Users can make comments regarding the webpage they are viewing within the Sidewiki. For example, if the user is viewing the webpage of a restaurant they have eaten at recently, they could post a comment on their dining experience.

Such tools and the ability for anyone to comment strike fear into even the most reputable business.

Businesses are understandably concerned about a situation where even undeserved negative comments garner attention.

Reputation tools are, however, available to monitor comments posted on theInternet.

For example, Seth Godin has developed the Brands in Public website, which collects tweets, blog posts, news stories, images, videos and comments about a brand. With all the information in one place, companies can easily track what’s said about them.

Business owners should be aware of what people are saying about their products so they can respond accordingly.

Businesses generally can’t suppress negative comments — except to the extent they cross legal boundaries, such as defamation or intellectual property infringement — but they also can’t manage what they don’t know about.

For the London Free Press – June 29, 2009

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We are seeing rapid developments in use of technology in court, including twittering, texting, “Googling,” and using Facebook during trial. These tools can be helpful, but can also lead to abuse of the process.

Last month in Ottawa, Chief Justice Douglas Cunningham ruled reporters couldn’t use video cameras during the trial of Ottawa Mayor Larry O’Brien, but could report live from court via electronic devices, “so long as any texting is done in an unobtrusive way and does not affect the running of the trial.”

“What we are talking about here is instant-text transmission to the blogosphere, but that is the world in which we live,” the judge said.

At the Bandidos trial in London, Justice Marc David also allowed use of electronic devices to provide live trial reports. And a U.S. District Court judge recently let a reporter send tweets from court.

Though there have been progressive uses, there have also been questionable uses.

In May, Miami-Dade Circuit Court Judge Scott Silverman declared a mistrial after discovering a witness was texting on the stand. A basic rule forbids witnesses on the stand from communicating with anyone during breaks or recesses, from communicating with anyone. “I never had this happen before,” the judge said. “This is completely outrageous.”

In Arkansas, a lawyer for a convicted company argued for an appeal on the basis that a juror sent slanderous statements via Twitter during the $12.6-million lawsuit. He argued the Twitter messages showed the juror was biased toward the defendant, causing an unfair trial. The appeal judge disagreed, however, saying while the tweets were in bad taste, they were not considered improper conduct.

In another instance, a judge overturned a conviction and ordered a retrial after a juror used Google to research the crime. The juror also printed out documents found in the search and brought them to the trial.

A British juror used “crowdsourcing” to ask her Facebook friends how she should decide a criminal case. She was taken off the jury.

In North Carolina last September, Judge B. Carlton was reprimanded for “friending” a lawyer in an ongoing child-custody case, reading messages about the litigation, “Googling” the defendant and visiting the defendant’s website. The judge later disqualified himself from the case and was publically reprimanded by North Carolina’s Judicial Standards Commission.

Trying new technologies in the judicial process, questioning how things are done, and taking innovative approaches are all good things. But we must balance them with some thought about whether it’s the right thing to do in the circumstances.

UPDATE: Here’s a link to an article in the National Law Journal published on July 1 on the same topic.

That’s the title of my Slaw post from today, and the title of an article from socialcomputingmagazine.com.

My post reads:

That’s the title of an article worth reading at social computing magazine.com. (And speaking of social media, this article came to my attention via a Twitter post by Mathew Ingram.)

The article says:

KM and SM look very similar on the surface, but are actually radically different at multiple levels, both cultural and technical, and are locked in an undeclared cultural war for the soul of Enterprise 2.0.

And the most hilarious part is that most of the combatants don’t even realize they are in a war. They think they are loosely-aligned and working towards the same ends, with some minor differences of emphasis. So let me tell you about this war and how it is shaping up.

The article goes on to explain how boomers, gen-Xr’s and millenials approach this subject from different viewpoints. Its partly based on a top down control perspective vs a lets just create it perspective.

Another quote:

If you are wondering how a significant corporate cultural war can be in progress without making headlines, it is because the three generations involved process the world with different primary cognitive stances. The Boomers attempt to understand the world with words, and the best they can do is talk to themselves. The Gen X’ers try to avoid conflict by seeking solace in data and a relentless focus on reality. The Millenials are blissfully unaware of larger dynamics and just go ahead and create.

The article is interesting from the perspective of generational differences, and of KM vs SM.

So what does this have to do with the practice of law?

We all know that lawyers are hard to govern. We don’t like to do what we are told by the firm. Many lawyers are also traditionalists and are not keen to change. (Perhaps we are too rooted in precedent as an operating manual rather than as context – but that may be the subject of another post.) The top down approach usually doesn’t work. Knowledge management is a logical tool for lawyers to take advantage of to better practice and serve our clients – but its hard to get lawyers to buy in to it.

Perhaps there is hope in that as millenials start to take root in law firms they will just start to use social media tools to bring knowledge management into law firms from the bottom up.

Wiki anyone?