Law Times

LAW TIMES / AUGUST 11-18, 2008 FOCUS to be the venerable "cease and desist" letter. It was cost-effective and flex- ible and efficiently deployed through the ages, in a variety of matters ranging from copyright to unwarranted criticism. But as Gary D. Graham, at ne of the simplest weapons in a corporate lawyer's arsenal used Social network changes the rules for businesses O Cease and desist letters ceasing and desisting BY IAN HARVEY For Law Times cyberspace railed about poor pricing, failed hardware, and lack of support. Instead of ducking for cover, Gowling Lafleur Henderson LLP's Hamilton office notes, the game has changed. The internet and the birth of social media, mean lawyers and businesses have to get creative around how they tackle issues which would previously have them reaching for their C&D template. "Experts and expert opinions today don't come from doctors and lawyers, people today trust people who are like them," he says, pointing to the myriad of web sites where commen- tary and reviews of goods and services are commonplace. For a business fastidiously focused on protecting its brand, such commentary could be seen as a threat, especially if it's nega- tive, he says. However, the rules have changed, says Graham, and clients might be better advised to see the positive of such negative criticism in the light of a bigger picture. "One site I've recently had some exposure to is shespeaks.com," he says. "It's a place where women sign up — 75,000 of them so far — and register what they're inter- ested in. Then they get a sample of the product, use it, and review it and write about it for the site." The plan is for the collective opinion of multiple critics to ag- gregate into a mainstream percep- tion. But that's somewhat risky for old-school thinkers, he says. What if the reviews aren't pos- itive? How do you deal with it? It's a risk companies may be advised to take, since the extended focus-group services provided by shespeaks.com and similar sites may flag issues more select focus groups may not have picked up on and could hurt the product or service's long-term marketing plans. "You could say you're setting direct2dell.com/one2one/default. aspx) and Dell Ideastorm (http:// ideastorm.com/) are direct pipe- lines to the CEO's office where posters can offer up their ideas on what products and services — and pricing packages — Dell should be offering, which have quietly repaired a lot of Dell's im- age problems with a combination of proactive customer care and good old-fashioned listening. But it's not all sugar-coated. The company now stands up and admits mistakes, such as realizing it overreacted by slap- ping a cease and desist notice on a consumer tips web site, after a former Dell kiosk manager post- ed a series of comments offering "insider" details on how to get the best deal on a computer. The launch wasn't easy, says Dell set up a SWAT team of specialists tasked to go out and comb the web for disgruntled Dell customers. They were au- thorized to make personal con- tact and pose a simple question: "We know you're unhappy. What can we do to make it right?" Additionally Dell launched a corporate blog, written not by Dell but by a 14-year veteran of cus- tomer service, Lionel Menchaca. The Direct2Dell blogs (http:// Gary Graham says businesses must start accepting a greater risk in the today's technology- enhanced media. they were happy Dell was up front and constantly updated the investigation to which bat- teries were affected and what the return policy was on the blog. It's that kind of forward thinking, in which companies must accept they can't control content but they can provide their customers and clients with a reasonable response, that will determine the future relation- ship, says Graham. It's not as though the standard weapons in the arsenal are going to rot from lack of use, however, just that the advice to clients in how to deal with situation on the web must be tempered with the recognition of the realities at play. Brian Bowman, for example, is a Winnipeg-based associate at Pitblado LLB with a specialty in privacy legislation who is finding more of his hours dedicated to counselling clients who are com- plaining about materials posted on the web about them. Many are individuals mull- ing a defamation suit, while others are corporate clients an- gry at the way their product or service is being slagged. But, as Bowman says, the first response isn't a letter or a threat; it's simple to contact those re- sponsible for the posting, and politely ask for the materials to be taken down. He quickly discovered the issues dragged him into other areas of law: defamation, copy- right, trademark, licensing, and intellectual property. Going straight to litigation is an expensive option and, given the rate of content being posted on the web, could either inflame the situation or, conversely, be a wasted expense, since by the time the matter comes to trial the original slight will be long confined to the archives of his- tory and most likely forgotten. Still, if push comes to shove, litigation is always an option, since the courts have clearly ruled libel can exist online as well as in print. As such, the changing nature PAGE 13 of how clients are advised, as to an escalating approach, and when to reach for the standard weapons is something the legal profession should start to con- sider when it comes to social media, says Graham. "We have a technology in- dustry group which engaged on our major clients on these issues and I think we could be a little more organized about it going forward. This is definitely a trend worth watching." LT Ontario Consent & Capacity Legislation 2008–2009 Edition Consulting Editor: Michael McKelvey yourself up for defamation be- cause there could be some awful remarks about your product and that's scary," he says. "But it's here. You have to accept the neg- ative as an upside if you want to sell virally by word of mouth." Businesses have to start accept- ing a greater risk in the today's technology-enhanced media, he says, noting it has become more about relationship building and less about vertical selling. He pointed to Michael Dell Menchaca, not because the world wasn't ready but because the cor- porate legal team and marketing department were scared out of their collective shorts. "It was coincidental that we launched the blog July 10 just before the exploding batteries phenomenon happened," re- calls Menchaca, referring to the 2007 recall of laptop batteries, supplied by Sony and installed in some Dell, Apple, and other maker's computers, which had a tendency to burst into flames when overheated. "Then I post- ed a video on the blog of the exploding Dell in Osaka. I got quite a bit of reaction from the legal people at Dell. 'What the heck are you doing?' they asked me. 'You're drawing attention to this!' My response is that we have to deal with the positive and the negative. It can't just be all positive stuff, we have to deal with the bad stuff too." With the backing of his CEO, Acts covered here include: Health Care Consent Act, 1996 and regulations Mental Health Act and regulations Professional guidelines: 2004 and regulations Powers of Attorney Act Personal Health Information Protection Act, Quality of Care Information Protection ~ Consent to Medical Treatment ~ Advocating for Clients Public Hospitals Act Substitute Decisions Act, 1992 and regulations Act, 2004 Statutory Powers Procedure Act Consent and Capacity Board Information Sheets Consent and Capacity Rules of Practice and regulations Updated forms under the: ~ Mental Health Act ~ Substitute Decisions Act, 1992 ~ Health Care Consent Act, 1996 ~ Personal Health Information ~ Protection Act, 2004 Regulated Health Professions Act, 1991 — Health Professions Procedural Code useful features: concise Table of Contents with detailed Table for each Act a thorough subject index legislative history for each provision bleed tabs to help locate exactly what you need Order your copy today! Menchaca stayed the course and turned a corporate public relations disaster into a win of sorts. Customers weren't happy about the recall or the risk posed by the exploding batteries, but www.canadalawbook.ca Ont Consent Leg (LT 1-4x3).indd 1 (Dell Computer Corp. found- er), and his plan to refocus on customer-centric service since his return as CEO, as part of the new direction in which compa- nies have to start listening more acutely to their customers and potential customers. Dell, in fact, is a great example of a company that is leveraging social media. Two years ago it was in the customer-service dog- house. Blogs and forums across www.lawtimesnews.com LT0811 8/6/08 11:55:06 AM

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