I just watched this TED presentation by Philip K. Howard which touches on the issue of the growing complexity of our legal system which I have been mulling over for some time now.
Thankfully we don't have the same ever-present threat of litigation that Americans seem to live with each day and in virtually every sphere of their society but we probably aren't that far away from that sort of society. The Consumer Protection Act alone will take us quite a bit further along that road than we are now so its worthwhile to take 20 minutes to watch this video and consider the implications of new laws that have been and are being passed.
Not so long ago, a person was really as good as their word- or handshake. Agreements were struck and adhered to simply because one’s reputation within the business world, or any other sphere, was at stake. It was known and understood that people had relative freedom to enter into and perform agreements as long as the means and the result of that particular agreement were lawful. It was for precisely this reason that the law (and the respective governments worldwide) sought not to interfere in the freedom of its peoples in the entering into and adhering to the terms of their agreements. In fact in South Africa, only two forms of agreement have historically had to be in writing and signed – a credit agreement and a sale of immovable property.
The times however are changing: people are becoming ever more aware of their perceived rights and with this change in perception comes increased litigation. We are not for a moment suggesting that business associates cannot and should not be trusted. However, how certain can you really be that you have all understood the same thing? Are you absolutely sure that what your co-contractant said is what he/she actually meant? What happens if two or three years later a dispute emerges and none of the original contracting parties are available to provide any insight into the transaction? This is particularly so when there is no one else to witness the transaction in question.
So how does one safeguard against “I said, you said” type disputes developing before the courts and the various other dispute resolution fora that have emerged in recent times? The answer is quite simple- at the start of a relationship, and by this we mean any relationship, while basking in the warm glow of all the benefits that may be achievable- cater for the divorce.
We are continuously surprised by how many of our client’s come to see us because of a transaction that has gone sour, where the transaction is not embodied in any written document. Frequently such transactions are several years old and the people who were actually involved are no longer available to fill in the information gaps, leaving everyone in something of an invidious position. A problem which could be easily solved if at the time the transaction was entered into, the intended objectives and consequences for failure had been embodied in a written agreement – an agreement which the law says is evidence of the arrangements between the parties – and that is exactly the evidence we need to protect your interests.
There is of course much to be said for a properly drafted agreement. We are again frequently surprised by the number of clients who are willing to pour money into litigation, but not into the preparation and negotiation of detailed agreements.
As set out above, agreements are evidence of what the parties intended at the time they entered into an agreement. As such, it is highly advisable to include as much detail as possible in respect of not only what the parties wish to achieve by their agreement but what the consequences for failing to achieve these objectives within a stated (or reasonably determinable) period of time will be. By leaving as little as possible to chance, the parties themselves foreclose the possible areas of dispute, and thereby reduce the risks of litigation.
The social Web can be a scary space for a company venturing out and adopting social media initiatives as part of their overall marketing strategies. Engaging with customers on social media platforms like Twitter and Facebook involves a loss of control over the message and the conversation.
Actually, I don't believe companies and brand owners have real control over their brands and the conversations springing up around their brands largely due to the distributed and viral nature of these platforms. What companies can attempt to do is engage with the people who are talking about them and their brands and participate in a brand and relationship building exercise.
Now this sounds like the sort of marketing speak you might expect from, well, marketing types but an awareness of these sorts of dynamics is essential if you have any hope of understanding and working with the legal issues that arise out of social media initiatives. One tool which a growing number of companies are using is a social media policy. This video interview with Adam Brown, Head Of Social Media at Coca-Cola, gives a pretty good overview of what a social media policy should address (thanks to my client who referred this video to me):
I really like Coca-Cola's approach to its social media policy. A big part of the policy is intended to establish a broad framework (in this case a set of principles and values) that governs how various stakeholders make use of social media based on their roles within the organisation. I firmly believe that educating employees and other stakeholders about the social Web and social media tools goes a long way to reducing exposure to liability.
Combine that with a clear and carefully thought out framework that caters for the multitude of regulatory and other relevant compliance considerations and you are better equipped to manage the uncertainties that remain part and parcel of social media marketing campaigns and initiatives. It is also a good idea to approach a social media policy from the right perspective as lawyers. Lawyers have a tendency to try and cover all the bases and create documents that are very specific and prescriptive. The challenge with social media policies is that their subject matter is virtually in a state of constant flux as new services emerge and new uses for existing services become popular. A policy that is too specific will quickly become irrelevant or just inappropriate.
In addition, the process of developing a social media policy should create a better awareness of what the various social media tools can help the company achieve, where the risk areas are and strategies to help manage them. A better awareness means a more informed decision making process and the comfort of have a plan to deal with issues which may pop up along the way.
Social media policies will become increasingly valuable as more businesses start using social media. Just remember that social media policies, perhaps more than any other policy document, should be reviewed regularly to ensure that they remain relevant, appropriate and effective.
I was just listening to an old episode of This Week in Law (I recommend this podcast if you are interested in legal trends online even though there is a strong US law bias) and the panel discussed a tendency to incorporate seemingly absurd license provisions in terms of use.
By making any Submission, the sender automatically grants, or warrants that the owner of such material expressly grants, Lucas the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, and distribute such material (in whole or in part) throughout the universe and/or to incorporate it in other works in any form, media or technology now known or hereafter developed, for the full term of any copyright, trademark or patent that may exist in such material for any purpose that Lucas chooses, whether internal, public, commercial, or otherwise, without any compensation, credit or notice to the sender whatsoever. (emphasis added)
This sort of language both demonstrates the absurd lengths some lawyers will go to control how, when and where content may be used as, possibly, a degree of extreme foresight. If humans acquire the technology to venture beyond our home planet before the copyright term applicable to the submissions these sorts of terms apply to, one question is whether the licenses granted will continue to apply outside the scope of the usual geographical specifications more commonly used? Hypothetically this could be a challenge which terms of use with universal application could address although I have to wonder if these license terms sufficiently take into account the relativistic effect of galactic space travel or the implications of travelling between parallel universes?
(Note: as witty as my comments may seem, they were inspired by Evan Brown's similar comments on TWIL 36)
Google announced its Dashboard yesterday as part of its effort to address users' privacy concerns. The Dashboard gives you an overview of what personal information Google has collected about you through your use of its various services. The Dashboard is not public and you can only access it by signing in to view it. Viewing your Dashboard for the first time can be both disturbing and revealing. The Dashboard shows you details about your email accounts, your YouTube viewing habits and a lot more. Mine even told me what my last recorded location on Latitude was.
Dashboard isn't about privacy as secrecy but rather about privacy in the sense of being able to discover how much personal information has been collected and how much of that is publicly visible. The Dashboard also contains a variety of links to settings pages where you can modify your privacy settings for the various services you use as well as some guidance how to improve your privacy (as in secrecy).
Google's privacy policy is the enabling mechanism in terms of which you agree to all of this information being collected. That's not new and Google isn't the only company collecting your personal information. Facebook does it and so does virtually every website you visit or have an account with. Not all of them have privacy policies either.
What I find interesting about Dashboard is that it represents a serious effort to be transparent about what Google knows about you. Coupled with Google's Data Liberation initiative to show you how to get your data out of Google's services, Google is demonstrating an apparently sincere desire to keep you informed about the privacy implications of using its services.
There is an analogy in South African law. The Promotion of Access to Information Act creates a mechanism whereby you can require a company to disclose the personal information it has about you. Companies above a threshhold are required to publish a manual describing how you go about requesting this information. Google has gone a few steps further and is making this information available to you in alarming detail.
Although the Dashboard service goes some way towards answering the question of what Google knows about our lives online, it doesn't really provide many clues about how Google uses this information. In addition, one thing not included in the run-down is cookie-based data Google collects via its huge online ad-serving business.
Even so, Google Dashboard holds a lot of potentially sensitive data, providing yet another good reason for users to use hard to guess (strong) passwords on their Gmail or other Google accounts.
It isn't entirely accurate that Google doesn't tell you what it does with your personal information. Its privacy policy gives a number of insights into what it does with your personal information, although not in much detail:
We offer a number of services that do not require you to register for an account or provide any personal information to us, such as Google Search. In order to provide our full range of services, we may collect the following types of information:
Information you provide – When you sign up for a Google Account or other Google service or promotion that requires registration, we ask you for personal information (such as your name, email address and an account password). For certain services, such as our advertising programs, we also request credit card or other payment account information which we maintain in encrypted form on secure servers. We may combine the information you submit under your account with information from other Google services or third parties in order to provide you with a better experience and to improve the quality of our services. For certain services, we may give you the opportunity to opt out of combining such information.
Cookies – When you visit Google, we send one or more cookies – a small file containing a string of characters – to your computer or other device that uniquely identifies your browser. We use cookies to improve the quality of our service, including for storing user preferences, improving search results and ad selection, and tracking user trends, such as how people search. Google also uses cookies in its advertising services to help advertisers and publishers serve and manage ads across the web. We may set one or more cookies in your browser when you visit a website, including Google sites that use our advertising cookies, and view or click on an ad supported by Google’s advertising services.
Log information – When you access Google services, our servers automatically record information that your browser sends whenever you visit a website. These server logs may include information such as your web request, Internet Protocol address, browser type, browser language, the date and time of your request and one or more cookies that may uniquely identify your browser.
User communications – When you send email or other communications to Google, we may retain those communications in order to process your inquiries, respond to your requests and improve our services.
Affiliated Google Services on other sites – We offer some of our services on or through other web sites. Personal information that you provide to those sites may be sent to Google in order to deliver the service. We process such information under this Privacy Policy. The affiliated sites through which our services are offered may have different privacy practices and we encourage you to read their privacy policies.
Gadgets – Google may make available third party applications through its services. The information collected by Google when you enable a gadget or other application is processed under this Privacy Policy. Information collected by the application or gadget provider is governed by their privacy policies.
Location data – Google offers location-enabled services, such as Google Maps for mobile. If you use those services, Google may receive information about your actual location (such as GPS signals sent by a mobile device) or information that can be used to approximate a location (such as a cell ID).
Links – Google may present links in a format that enables us to keep track of whether these links have been followed. We use this information to improve the quality of our search technology, customized content and advertising. Read more information about links and redirected URLs.
Other sites – This Privacy Policy applies to Google services only. We do not exercise control over the sites displayed as search results, sites that include Google applications, products or services, or links from within our various services. These other sites may place their own cookies or other files on your computer, collect data or solicit personal information from you.
Google only processes personal information for the purposes described in this Privacy Policy and/or the supplementary privacy notices for specific services. In addition to the above, such purposes include:
Providing our services, including the display of customized content and advertising;
Auditing, research and analysis in order to maintain, protect and improve our services;
Ensuring the technical functioning of our network;
Protecting the rights or property of Google or our users; and
Developing new services.
You can find more information about how we process personal information by referring to the supplementary privacy notices for particular services.
Google processes personal information on our servers in the United States of America and in other countries. In some cases, we process personal information on a server outside your own country. We may process personal information to provide our own services. In some cases, we may process personal information on behalf of and according to the instructions of a third party, such as our advertising partners.
In related news ... Facebook
Facebook published an updated privacy policy that is even clearer about what personal information Facebook collects and what it does with that personal information. The draft policy was published for comment just over a week ago in accordance with Facebook's new comment and voting process it implemented with its revamped legal framework a while ago. The new process requires that a certain number of votes be received before users can influence the adoption of a new policy framework in a meaningful way. Short of that it is up to Facebook to collate comments and incorporate them at will.
The draft policy is very clear. It was drafted in plain language and it explains to users what happens to the personal information Facebook collects. One of the concerns is more about 3rd parties and what they do with users' personal information. As the draft policy points out:
We take steps to ensure that others use information that you share on Facebook in a manner consistent with your privacy settings, but we cannot guarantee that they will follow our rules. Read the following section to learn more about how you can protect yourself when you share information with third parties.
The American Civil Liberties Union published a quiz on Facebook that reveals what 3rd parties learn about you when you use 3rd parties applications. It is alarming how the massive amount of personal information users make available on Facebook can be collated and what it can be used for. This doesn't just affect users who use these applications but extends to their contacts, often without their contacts' express consent.
It is essential that users pay careful attention to their privacy settings on Facebook because these settings apparently dictate what personal information can be disclosed. Simply creating a complete profile involves disclosing a lot of detailed personal information and the privacy settings are often the only thing standing in the way of total and unwanted disclosure. There has also been talk that even these privacy settings can be disregarded in certain circumstances so even that protection is somewhat limited.
Of course there is also the persistent risk that the safeguards that are in place could be overcome:
Risks inherent in sharing information. Although we allow you to set privacy options that limit access to your information, please be aware that no security measures are perfect or impenetrable. We cannot control the actions of other users with whom you share your information. We cannot guarantee that only authorized persons will view your information. We cannot ensure that information you share on Facebook will not become publicly available. We are not responsible for third party circumvention of any privacy settings or security measures on Facebook. You can reduce these risks by using common sense security practices such as choosing a strong password, using different passwords for different services, and using up to date antivirus software.
The only safe assumption that anyone can make when active on the social Web is to assume that anything you publish online can be made public and then decide from there whether to publish the information in the first place.
The point
There are clear advances in how privacy policies are prepared and communicated to users. Facebook is a pioneer in developing plain language and interactive legal frameworks even though there are real concerns about the sanctity of personal information disclosed to Facebook and its partners.
On the other hand, Google has taken some significant steps in improving not just how transparent it is about what personal information it collects from its users but also how users can take their data out of the Google ecosystem and migrate to other services. This latter area is one in which Facebook is lagging behind considerably, despite its efforts to date to enable data portability.
Of course Google's transparency doesn't change the fact that Google does collect a considerable amount of personal information about you and that body of personal information grows as your use of Google's services increases over time. The same can be said for Facebook and what this means is that privacy on the Web is really less about secrecy and more about the degree of control you have over the personal information that is collected and what is done with it.
My post the other day got me thinking about how lawyers explain what they do to clients. I realised that we, as lawyers, have this tendency to speak in terms of legal disciplines and categories rather than in terms of what we can do for clients in real terms. We don't even use standard legal categories either. A typical law firm will explain that its many lawyers practice:
contract law;
banking and finance law;
employment law;
intellectual property law;
technology law; etc
As much as we, the lawyers, may think this is a pretty clear indication of what we can do for our clients, I wonder how many of our clients wake up and say the following to themselves:
"Hmm, I need a lawyer who can handle a technology law thing with a little contract law and an element of employment law for that project ..."
I don't imagine that is how many of our clients conceptualise their legal requirements. Instead I can see a client thinking about her requirements in more practical terms. She may be working on an advertising campaign or about to sign a lease agreement and needs a lawyer to prepare the documents necessary to make that possible or even review an existing set of documents and advise her about their adequacy.
There is a disconnect between how lawyers think and talk and how our clients think and talk (unless, of course, our clients are former lawyers in which case we simply speak different dialects). We, the lawyers, need to speak using less jargon and legalese if we have any hopes of connecting with our clients in real terms. A good place to start is the "what we do" pages on our websites. I think dealing with lawyers can be an intimidating enough prospect and still having to decipher what "what we do" page is just a frustrating experience.
When I looked at how we describe what we do I saw some of the same language issues. I then started thinking that a better way to describe what we do is to approach the question from a client's perspective. Two analogies for legal services came to mind: building a house and developing a software application. Creating a solid legal framework is a little like building a house. As lawyers, we incorporate a number of features into an agreement or policy document that should give a client the equivalent of a solid foundation, four walls and a roof. We also furnish that house and even add a coat of paint. The end result is a legal framework that is functional and aesthetically pleasing. In other words, it accurately describes the legal relationship it is intended to govern and it is intelligible.
In software terms, the law is a bit like a programming language. To borrow from Professor Lawrence Lessig's book title (I still need to read Code 2.0 myself so don't take this as indicative of what the book is about), the law is code and the language we use can be used to create a variety of legal frameworks, both simple and complex. The end result is a sort of legal software application which should achieve a result or set of results.
Whether we, the lawyers, use a construction, software development or other analogy, legal services and how those services are described should be framed in more helpful terms if they are to be relevant to clients. Exactly how we present what can be a dizzying array of legal services in plain terms is a challenge and an ongoing one at that. As a starting point, take a look at how we are doing it at this firm. I edited our "Services" page this morning.
One of the most common requests I receive from clients is for a "simple 1 page agreement" for some or other business venture. These clients are often dismayed when I inform them that I can't give them a "simple 1 page agreement" (well, unless I drop the font to size 6, use columns and print on both sides of the page) and that a properly drafted agreement will run considerably longer.
I've written about why website terms of use are so important as well as how some prominent companies have gotten it wrong in the past. I took a look at a couple local services' terms of use the other day when I was doing some research for a current project and found that some popular sites don't even have website terms of use. Terms of use are contracts with users and, as such, they must be carefully drafted.
It almost goes without saying that the agreements that a business uses for its ongoing activities should also be carefully drafted. Well, maybe it doesn't go without saying because if it was that obvious clients wouldn't ask for "simple 1 page agreements".
Perhaps it would be helpful to briefly consider what role an agreement plays in a business relationship. For starters an agreement (here I am talking about a written document that is also referred to as a "contract") must record the terms the parties have discussed and reached consensus on. In other words, you and your trading partner must have reached consensus on what each of you is going to do and receive and those rights and obligations must be accurately recorded in the document you will presumably sign. This is critical because if there is ever a disagreement about what those rights and obligations are, you need a reference point that you both agreement is the authoritative reference point.
Another reason why you should have a properly drafted agreement is to safeguard your rights and reduce your exposure to liability. Now it isn't necessary for your agreement to be recorded in a written document for you to have a legally binding agreement (there are exceptions which include agreements to sell land or immovable property and wills). You could quite easily reach agreement orally for to sell and buy a car or enter into a complex joint venture but that isn't recommended at all. People's recollection of oral agreements can fade and parties can easily forget to debate a range of more subtle legal issues. In addition, the law often inserts terms almost by default unless your agreement varies those default terms (many of which may not be to your liking at all or may not suit your needs). A well drafted contract will encapsulate the consensus you have reached with your trading partner and will also contain a number of provisions dealing with issues like:
common terms to help simplify interpretation of the agreement;
liability;
how disputes will be addressed;
which legal system will apply;
can the parties transfer their rights to other parties;
which court will decide disputes and more.
These issues are frequently not considered when parties sit down to chat about how to structure their business activities. They tend to focus on the substantive issues and assume that the rest will be taken care of. These sorts of simplified agreements may well fit on a single page but when you start to consider all the other issues and considerations that have just as much of an impact on your business relationship going forward, the document starts to get a little thicker.
In fact, entering into a business relationship is pretty similar to a marriage in this sense. Anyone who is married out of community of property will probably have signed an ante-nuptial contract and would have been cautioned to have the contract prepared as if the marriage were already ending. This is a particularly disturbing thought, especially when you are about to start a new and hopefully lifelong life together but it is necessary. Like marriages, business relationships can end and catering for the possible end of the relationship could save considerable time and financial costs down the line.
Taking the time to draft an agreement properly will serve the parties far better than a quick 1 page agreement prepared more for the sake of perceived formality and minimal functionality. Clients sometimes mention to me that a lengthy agreement will scare their partners off and my response is almost always that lengthy agreements are commonplace in business and that it is really far better to have your bases covered than to risk disaster later. I think one of the reasons clients are so averse to properly drafted contracts is more because they are traditionally drafted in obscure legalese and are intimidating. A good lawyer will draft a contract in plain language that does what it needs to do without feeling the need to use overly technical language to impress her clients.
The bottom line here is that a "simple 1 page agreement" doesn't serve you. It won't do what it is supposed to do and you risk being terribly exposed if you insist on having one prepared rather than having it done properly.
I think about how law is practiced quite a lot. I have this nagging feeling the way law is practiced now is hopelessly outmoded and out of touch with clients' changing needs in an environment which is changing even faster.
A number of firms, mostly smaller firms, are changing billing models from the traditional billable hour to fixed fees and retainers (I've implemented that change in this firm and the billable hour has become the exception for those clients who prefer it) and even their operating structures which, in come cases, are becoming more virtual with lawyers spread over distances collaborating remotely using online tools.
While these changes are important, they feel a little like innovations in gas lighting right before the electric light finally overtakes gas lighting and renders it redundant. Of course law firms still charging by the hour and working the way they have worked for the last few decades are going to retain a degree of support but are fast become anachronisms and symbols of what is wrong with legal practice.
Jordan Furlong published a post with his thoughts about how legal practice could change in his post titled "The electric law firm" (the title appeals to me, I love this sort of retro contrast between old tech and new innovations). One of the models he talks about involves lawyers giving away some of the work we traditionally charge for and shifting the emphasis to other aspects of our services:
So how might a law firm give away products while selling services? Jeff Carr has observed that lawyer work falls into four categories: content, process, judgment and advocacy. The first two are well on their way to commoditization; the latter two remain the high-value and near-irreplaceable purview of lawyers. The day might soon arrive when firms publish and automate their legal knowledge, document assembly and document review process free of charge, over the internet, to anyone who wants them - but will charge a monthly retainer fee for the personal judgment, advice and representation that animates those documents and processes and provides real value. Wilson Sonsini’s term sheet generator is a step in this direction, but so are child support calculators and PCT calculators. The tangible product is the giveaway; the value, and the profit, are in the service.
A fair portion of my firm's fee income is derived from custom documents that we create for our clients. At the same time there is a variety of online resources that threaten this source of income, perhaps rightly so. I still believe that there is value in documents that are designed to cater for specific needs but a fair proportion of documents lawyers prepare for their clients are probably pretty similar and could be adequately created using good templates and well designed document creation tools.
What remains is what has been at the core of the legal profession since it first began: knowledge and skill. I believe that what clients ultimately want from their lawyers is the benefit of their expertise. Frequently that is expressed through a document of some kind but if you take away the document creation side as the dominant expression of legal expertise you are left with, well, the expertise itself.
This reminds me about that old tale (apologies in advance for my mutilation of this classic story) of the plant manager whose production line grinds to a halt due to some fault his best engineers can't identify or repair so he calls a specialist engineer. The specialist walks in with his toolkit and spends the next hour or so poking around, crawling into tight spaces and eventually emerges, walks up to his toolkit and takes out a hammer. He walks up to a section of piping, gives it a solid whack and starts up the production line. The plant manager thanks the specialist who leaves. A few days later the plant manager receives a bill for R10 000 (you know, some seemingly exhorbitant figure). The plant manager calls the specialist, outraged, and asks him how he could possibly charge so much for a whack of his hammer. The specialist calmly replies that the hammer whack cost R10 but knowing where to whack the hammer cost R9 990.
This story comes to mind whenever I come across a client expressing dismay at the cost of a particular document or service in light of the freely available resources online (for example). The document is one small part of the process. A much bigger part is knowing which document to use and which customisations to incorporate into that document. The same principle applies with legal advice, dispute resolution and so on.
Whatever form legal practice will take in the near future, the emphasis must be more on knowledge and skill than on widgets. I have my doubts whether large firms are nimble enough to keep up with the pace of innovation taking place in smaller firms but the profession will change, eventually.
I have only just started reading through the July Brainstorm magazine and began with the article aboutMichalsons Online, an initiative of the well known South African technology law firm, Michalsons Attorneys.
The Brainstorm article suggests Michalsons Online began making legal information available online recently the site's archives go back to 2002. Just the same this service is a welcome addition to a range of other sources of public legal information, much of which has been made available by large and small law firms alike. Jacobson Attorneys has been publishing articles about legal principles and issues for almost 4 years now although not quite with the frequency of many of its competitors. Just the same, the more South African law firms publish articles about relevant legal topics, the richer the local, collective and online law resources become. Michalson's content is largely behind a subscription paywall but it is still a valuable addition to the space.
The model is a variation of something I tried to implement a couple years ago with a colleague of mine (who also routinely publishes interesting articles about a range of legal topics). We asked the local law society whether we could provide subscription based legal advice to clients and we were told, a year after the request was made, that this would violate our ethics as attorneys because it would be regarded as touting. Michalsons seems to have circumvented this hurdle by creating a separate vehicle for Michalsons Online which is not Michalsons Attorneys.
The site looks like it is built on top of WordPress and has a subscription option for R299 per month. The purpose of the service, according to the Brainstorm article, is as follows:
What Michalsons Online aims to do is provide accurate and relevant information to the local market on topics that are relatively generic. As the site puts it: “We offer proactive insight and knowledge that no longer needs to be accessed exclusively by traditional consultation with an attorney.”
I subscribed for the free version to take a look at the articles and they are helpful and informative articles and should prove to be a valuable resource for subscribers. I have been working to make more of my legal knowledge available to visitors to my site in its various incarnations for some time now. I agree with Lance Michalson that lay people do not have adequate access to the law and it is important to make the law more accessible. This is one of the reasons why I publish as much of my knowledge as I can on this site and why I also created this custom search engine which references a variety of legal resources in South Africa ranging from government legal information to private law firm websites.
The one aspect of the service I am a little dubious about is the claim that the Michalsons Online service can satisfactorily replace direct advice from a lawyer:
Says Michalson: “There is a slowly emerging demand for lawyers to reduce fees and provide answers online. We’re giving away the answers and taking a big step by giving them away online. What’s nice [for clients] is that you can pay me R1 500 per hour to tell you the information or pay R200 per month to subscribe and find out online. There is lots of information plus stuff like self-assessments to see the extent to which you comply with a law. We’ve just started a document assembly offering that can put together contracts.
While I'd love to reach a point where online legal information can address all but a small subset of highly specialised needs, it is problematic suggesting that relatively generic information can replace specific legal advice. At the same time well structured, comprehensive and varied legal content can answer a number of queries but clients still need to refer to their lawyers to make sure their specific needs are catered for. Michalsons Online does recognise this challenge and has the following caveat in its Online Legal Guidance Terms:
It has been prepared as a summary and opinion on general principles of law and is published for general guidance purposes only. The content does not constitute specific legal, tax, investment, or accountancy advice. Seek advice from a suitably qualified professional adviser before dealing with any specific situation.
I don't believe that law firms can publish legal articles and sit back thinking they have introduced sufficient change to the profession. As Lance Michalson points out in the Brainstorm article, clients are increasingly dissatisfied with high legal costs (particularly hourly billing). The traditional law firm model doesn't work anymore and firms must adapt. One of the ways they can do that is to move off the hourly billing model and charge fees based on value (I have all but abandoned the hourly billing model for the majority of my clients). It is a relatively new concept in SA law firms but it will be the differentiator between successful firms and firms that struggle for credibility in their client's eyes.
All in all this is a good sign for publicly available law in South Africa. Seeing services like this certainly inspires me to post more frequently and share more of my knowledge and insights, particularly as it relates to the Web and digital media. I don't believe this firm will charge for access to these articles in the foreseeable future and we will continue to license that content under a Creative Commons license to improve access to the content. At the same time, different models are good for the industry because we get to see which ones work and which ones don't. So, belatedly, welcome Michalsons Online to next generation legal services.
I lost my faith in Facebook not too long ago when news broke about its extremely onerous terms of use (which it subsequently reversed after a public uproar). I cautioned businesses not to use Facebook because of the risk of having their content appropriated and used in ways they may not have contemplated previously. Not only did Facebook revert to its previous terms of use (which are mildly better than the objectionable set), it announced an innovative approach to the next general legal infrastructure for the service. Mark Zuckerberg posted an update to the Facebook blog which included the following:
Our main goal at Facebook is to help make the world more open and transparent. We believe that if we want to lead the world in this direction, then we must set an example by running our service in this way.
We sat down to work on documents that could be the foundation of this and we came to an interesting realization—that the conventional business practices around a Terms of Use document are just too restrictive to achieve these goals. We decided we needed to do things differently and so we're going to develop new policies that will govern our system from the ground up in an open and transparent way.
Beginning today, we are giving you a greater opportunity to voice your opinion over how Facebook is governed. We're starting this off by publishing two new documents for your review and comment. The first is the Facebook Principles, which defines your rights and will serve as the guiding framework behind any policy we'll consider—or the reason we won't consider others. The second document is the Statement of Rights and Responsibilities, which will replace the existing Terms of Use. With both documents, we tried hard to simplify the language so you have a clear understanding of how Facebook will be run. We've created separate groups for each document so you can read them and provide comments and feedback. You can find the Facebook Principles here and the Statement of Rights and Responsibilities here. Before these new proposals go into effect, you'll also have the ability to vote for or against proposed changes.
This post reinforced what I was hearing from people who have been working with Facebook to help open Facebook up a little more and help it achieve its stated intention of being more transparent. It also reinforced a view that people like John McCrea (from Plaxo) expressed to me in a conversation about the terms of use controversy on Facebook, namely that the legal framework the terms of use created did not reflect Facebook's ethos. I soon found similarperspectives along these lines elsewhere and began to think a little differently about Facebook.
In keeping with my original criticisms of Facebook's terms of use I turned to what Facebook was doing to address criticisms about its governance structure. As Zuckerberg's post pointed out, Facebook initiated what it calls a "town hall" process of presenting a new framework in the form of its Facebook Principles and its Statement of Rights and Responsibilities to its users and inviting users to give feedback on this new framework.
This model is pretty innovative for a Web service's legal framework and it is analogous to a constitutional framework used by many nation states. That probably shouldn't be surprising considering that Facebook's 200+ million users would make Facebook roughly the 6th biggest country if it was a country. The usual model for developing a site's terms of service is to brief an attorney or legal person (preferably) to draw up the terms of use and implement them. If you have the right lawyer you will have a terms of use that more accurately reflect your company's ethos. If not, you will have the usual legal terms that users have learned to ignore.
Facebook has taken the whole process a couple steps further and have not only invited users' feedback and opinions on the proposed framework (each group has in excess of 10 500 users who have taken an interest in the process) during the course of March 2009 but it is addressing a concern that came up during a discussion I had with Susan Cartier Liebel when the controversy arose. At the time the typical response to the controversy, particularly when Zuckerberg initially responded by saying that Facebook respected users' ownership rights over their content (this argument was a response to claims that Facebook was seeking to take ownership of users' content - this was a misunderstanding of the terms of use and missed an important point), was that Facebook didn't mean what the terms said and so the terms shouldn't be that important. Unfortunately the terms are the only terms that matter if there is a dispute so that argument had to fail. Anyway, the proposed new framework addresses that issue.
Facebook's proposed new governance framework will introduce not only an improved set of terms in the form of Facebook's Statement of Rights and Responsibilities but it also introduces an interpretive aid when the Statement itself is vague or apparently out of touch with Facebook's declared intentions. By establishing the Facebook Principles as "the foundation for how we define the rights and responsibilities of Facebook and its community", we begin to see a governance framework that is analogous to a constitution that guides the interpretation and development of a body of laws that govern a nation.
While the proposed framework is hardly perfect, it represents a significant improvement on the retracted terms as well as the current terms of use. I recently wrote about a brief comparison between various terms of use including Google's (which I regard as a good starting point) and the proposed framework was much better in many respects.
So where this left me was with a sense that Facebook isn't quite as evil as I believed it to be (at least the people behind the scenes are working to be more open and transparent). There is still room for improvement in how Facebook operates and what its governance structure enables. We are yet to see its current terms replaced with a version of the proposed framework (the two groups closed for comments on 29 March and the Facebook team is reviewing the comments posted with a view to coming up with a modified set which takes users' feedback into account. I do believe that we will see an improved governance framework soon enough and that is good news for individual and business users alike.
As for me, I have been using Facebook a lot more lately and I believe that my Facebook page can serve as a great way for Facebook users and fans of what I do and write about to engage with me and with each other about these and other issues in addition to the opportunities my site offers for interaction. Hopefully Facebook has learned its lessons and is on the better path. It has made its mistakes in the past and we will probably see a few more but my hope is that it responds quickly and decisively to users' feedback and creates a more open and transparent platform for all its users.
Do you have any thoughts about this process? Have your opinions about Facebook changed after its disastrous terms of use? If they have, how did they change?
Update: There is a new post on the Facebook blog. Facebook is going to present different versions of the proposed terms of use and will give users an opportunity to vote on which version they prefer. This is both unprecedented and very exciting:
On April 16, we'll be posting revised versions of the documents based on the feedback we've received. We'll also be sharing a written response to the main concerns people have expressed. This will explain in clear language why we did — or did not — make certain changes. This is similar to how U.S. federal agencies create regulations.
At the same time, we'll be asking people to vote on the new revised documents. Voting will begin on April 16 and end on April 23. It will be done through an application developed on Facebook Platform by Wildfire, and the vote tabulation will be audited by Ernst & Young to ensure that the results are accurate.
Google announced its Dashboard yesterday as part of its effort to address users' privacy concerns. The Dashboard gives you an overview of what personal information Google has collected about you through your use of its various services. The Dashboard is not public and you can only access it by signing in to view it. Viewing your Dashboard for the first time can be both disturbing and revealing. The Dashboard shows you details about your email accounts, your YouTube viewing habits and a lot more. Mine even told me what my last recorded location on Latitude was.
Facebook published an updated privacy policy that is even clearer about what personal information Facebook collects and what it does with that personal information. The 
