First published on Brand Republic 23 May 2011
Last week, my 26 April post on ‘Super-injunctions’ attracted a surge of interest on a spectacular scale, partly through the national news agenda but also on Twitter from the likes of @JennaAlicia (#ff Jenna-Alicia from @TheSalmonAgency!)
I guess one follows the other but, these days, I am confused as to which is which. Does Twitter set the news agenda or does the news agenda follow Twitter?
Today, as I write this, Twitter is on the front page of all the national newspapers, so I really cannot do anything but return to this topic – hopefully in such a way that it will not be out of date by the time you read it.
And, please don’t worry, I won’t name names or break the law. I am an identifiable human being posting these views on a reputable business website.
First I have a small confession to make. I sneakily changed the title of my earlier post from ‘Contra Mundums etc’ to ‘Super-injunctions’ because a month ago the word ‘super-injunction’ had not entered our language as it has now.
And I still think ‘Contra Mundum’ is a really cool term. What a great name for a book, film or rock band (speaking of which, there is a legal term called a ‘Motley Fool Order’ which may enter your vocabulary soon).
Anyway, whatever the language, my earlier post was about:
i) the enforceability of super-injunctions
ii) the role our marketing and advertising industries could play in achieving this.
Today, a month later, we all know the name of one of the footballers involved. In fact it wasn’t difficult to find out as long ago as 9 May (as I did). There is another footballer, a TV presenter and an actor – I think I know who all of them are.
So where are we now?
On enforceability, the first issue is can British (European?) law apply to a company ‘registered’ in California? Lawyer Mark Stephens said: “If you want to sue Twitter, you have to go to San Francisco. Any attempt to enforce English privacy or libel law will not be accepted in the US.”
Well, legally, that may be the case, but surely if advertisers in the UK and Europe offer (or are forced) to refuse to use Twitter in their marketing campaigns, then wouldn’t Twitter have to sit up and take notice?
And this is the core development we have reached. A polarisation has emerged between what Twitter, Facebook and LinkedIn might call ‘mainstream’ online media on the one hand and the small, independent, often anonymous private sites who like to slag people off left right and centre.
These ‘mainstream’ sites have achieved massive financial valuations which will be justified by their attaining significant advertising revenues.
And herein lies the issue. Why would any reputable company advertise to an audience of demographically ‘strange’ (sometimes very strange) people?
Surely it is in the best interests of Twitter and other social networking sites to ensure their users are identifiable human beings, not anonymous weirdos in internet cafes?
I am no expert on capital markets but I gather Twitter is valued at around ten billion dollars (Facebook $100 billion). If they don’t achieve their worldwide advertising revenue forecasts, their valuations will plummet and they may even go bust. The brands won’t disappear of course – just the companies and people that own them.
The second issue is the sheer number of Twitterati worldwide who are said to have ignored the law (ignorance is no defence). How can they all be traced and punished?
Well, maybe they can’t – but we live in a ‘new media’ world and perhaps new legal principles need to be established. For example, what if Twitter was punished in proportion to the number of their users who had used Twitter to break the law? Then, for sure, they would know who their users are. They are not difficult to ‘verify’.
And I don’t believe Twitter will never be accountable to the laws in the countries they operate. Yes, they are worldwide websites, which is part of their attraction but, as argued above, what about the countries from whom they want to attract revenue?
Will Twitter really never have a UK or European office who can be forced to reveal details of UK and European users?
Of course not. As we speak, according to Brand Republic and the Financial Times, Mr Tony Wang has moved from San Francisco to the UK to open a Twitter office. This must be true because he has tweeted the news himself. Indeed, there is a ‘verified’ @TwitterUK account. And Facebook have an office near Regent Street.
These ‘mainstream sites’ absolutely must open offices in the UK and Europe. If not, how will they justify these huge valuations?
That’s where we come in.
As per my previous post, we need a Code of Practice (the ‘Contra Mundum Code’?) whereby ‘mainstream’ advertisers using ‘mainstream’ agencies to communicate to customers via ‘mainstream’ media channels must insist that these ‘new media’ channels can identify the users who make comments on their sites.
Do you think the ‘readers letters’ published in national newspapers haven’t been double-checked as real people whom the publishers cannot identify if they need to?
For the umpteenth time, our politicians (who, unlike judges, make laws) need to engage more fully with the marketing and advertising industry.
By doing so, we can help them force these sites more accountable and, if required by law, reveal the personal details of users who have broken the law on ‘mainstream’ online media channels.
Oh dear, I’ve chosen to make this point in the very week it was revealed that 10 Downing Street has been sending letters to the people of this country using fake computer-generated names like ‘Mrs E Adams’.
Oh me of little faith.
