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Higher Ed Law Marketing & Communications Photography Privacy

The Bay and Appropriation of (Black) Personality for the “Charter for Change”

So The Bay fisked up.

As seen on Twitter, and then reported on, they used a photo of a Black person without their consent as part of a campaign for their “Charter for Change” marketing program. Not great — and compounding the mistake, it was a photo of Hadiya Roderique, a well known Black lawyer (not currently practising, but a JD is a powerful thing) and activist championing marginalized voices.

She called them out on Twitter, they replied, acknowledged the error, and removed the photo. Which seems to have satisfied Roderique, per the CBC article, although she’s hoping for the Bay to make a financial contribution to a Black or Indigenous organization (although that seems to more or less be the goal of the Charter for Change program in the first place).

What went wrong?

The cascade here is pretty much what I guessed when it broke. Extrapolating some probable steps, based on my own past in agency work for national/multinational clients: an agency grabbed photos online as part of a pitch, probably one among a batch of concepts they were presenting. Pitch was approved, and somebody went ahead with the pitch concept without doing the due diligence of talking to the original creative team to make sure the right permissions were in place.

And here we are. The Bay has apologized, the photos are taken down, more attention has been brought to the issues of using marginalized peoples’ work without credit or compensation.

But what would Roderique’s options have been had the Bay been obstinate about the whole thing? Or if she decided that the Bay’s takedown and apology wasn’t good enough, and wanted to see how far she could push the issue in the courts?

Never a bad time to mention: I am not a lawyer, and this is not legal advice.

Banjo/lyrics me, vocals Greenish, and video from Donghu Jung, Madison Inouye, Sora Shimazaki (Pexels) and Stefania Buzatu (Pixabay)

This is a situation where the PR and public shame levers were the best ones to pull — because however you choose to push this to the courts, it’s unlikely that there would have been financial penalties to The Bay that would affect it in a meaningful way.

The copyright angle:

First, there’s the question of using the photo as a creative work without permissions. As Roderique establishes in the Twitter thread, it seems like the copyright is held by another photographer, and not Roderique or the Globe and Mail (where the photo first appeared); likely it was taken by the photographer and licensed to the paper.

Assuming my read of Roderique’s presentation of the photo copyright in the Twitter thread is correct, Roderique herself has no claim here: while she’s the subject of the photo, the right in the artistic work resides with the creator (photographer).

If the copyright holder — assuming photographer, and not the Globe — pursued this, awards for this kind of violation have been historically fairly low; generally about what the photographer would normally charge to license a photo, or an industry-standard amount; figure around $5,000. 1See Chung v Brandy Melville, with the caveat that this is also a case from Quebec’s civil system, albeit one that draws on the federal Copyright Act Amounts that I wouldn’t want to pay for a candy bar, but not exactly bringing a department store chain to its knees.

Personality rights:

This is where Roderique herself could look at actions. Publicity / personality rights aren’t that well established in Canada. Where they have been taken to court in the past, it’s usually been in the context of a public figure, such as Bob Krouse or the estate of Glenn Gould, pursuing claims (and — worthy of mention — neither succeeded). Roderique herself is not an unknown person in Canada, but it would be tenuous to say that she has the kind of fame that would make The Bay’s use of her photo qualify as “passing off” — using her name/image as an implicit endorsement of their program based on general recognition of who she is.

BC, Manitoba, Newfoundland and Saskatchewan all have provincial acts that forbid the use of one’s likeness without permission in advertising, but that doesn’t exist in Ontario, and isn’t captured in federal legislation. Since Roderique is in Ontario, and (likely) The Bay is headquartered in Ontario, there probably isn’t much there.2It’s worth noting that at least at the small claims level, a court has recognized appropriation of personality and awarded a nominal amount — $100 — in Vanderveen v Waterbridge Media. So from a precedent perspective, it’s in the books, so to speak.

Success is less assured here. Working through a set of factors defined by Amy Conroy of the University of Ottawa in 20123Amy Conroy, “Protecting Your Personality Rights in Canada: A Matter of Property or Privacy?”, Western Journal of Legal Studies, Vol. 1 Issue 1, there are a number of escape hatches for The Bay: Roderique’s relative lack of fame (while she’s well known in some circles, she’s not a public figure to the point that you can immediately profit from her notoriety and likeness), the fact that this is to support a charitable endeavour by The Bay and not direct profit for the company (there’s an argument that can be made here about the marketing/PR value of the campaign for the company’s bottom line, but the campaign is ostensibly about them giving money to charities to support marginalized peoples).

PIPEDA and the OPC:

This is pretty tenuous, but arguably — as Roderique is recognizable in the photo — it constitutes a ‘record’ per PIPEDA’s definitions. You could conceivably pursue a claim with the Office of the Privacy Commissioner about the unauthorized exposure of this record as a privacy violation per PIPEDA.

There, however, the chain of actions in a complaint filing literally makes “Give the organization a chance to address your concern” the second step in the process.4“File a complaint about a business,” Office of the Privacy Commissioner of Canada When this was brought to their attention The Bay apologized and struck the image both online and in stores, which historically has been seen as a satisfactory resolution for the OPC.

Public Relations vs. Public Relations

It doesn’t take a genius to work out what’s been happening in The Bay’s boardrooms: somebody at some point realized that having a company whose entire history stems from the Colonial exploitation of Indigenous trappers might be problematic. Whether you take a cynical or positive view of this whole “let’s re-invent this whole Charter business” in a direction that drives money to marginalized groups, it’s fundamentally all about addressing that Hudson-sized skeleton in The Bay’s closet.

So calling them out — loudly and publicly — on how they’re building this make-good campaign on the backs of underrepresented people, and exploiting their images to make up for a history of exploitation — a sound, savvy move.

PR damage is the worst damage in this scenario. Quietly pursuing them on legally protected grounds would not be fruitless — if you have time and energy, you’d be putting them in a position where they’d be sinking tens of thousands of dollars in executive time and legal costs to mount a defense that they might lose.

The odds of doing significant financial damage to The Bay are minimal, but drawing public attention to this as a major PR misstep has been a success. Whether you’re taking a sincere or cynical view of The Bay’s “charter re-invention” project, drawing attention to the irony here was an entirely appropriate thing to do.

Would they have reacted with the same speed if it were not a notable Black woman with a law degree and a significant Twitter following? There’s no A/B test for the universe, so again, it falls to whether you’re taking a sincere or cynical view of the campaign’s genesis, management, and intentions.

Categories
Consent Law LLM Marketing & Communications Photography Privacy Videography

Billy Prosser and the Four Torts of Secrecy

Billy Prosser and the Four Torts

Quick quiz: who’s not a lawyer? Me! What’s not legal advice? This!

“Billy Prosser and the Four Torts of Secrecy.” Sounds like a YA wizard novel, right? Well, if we’re looking at the history of privacy law, Prosser was kind of a wizard. He took the raw material of the Warren/Brandeis “Right to Privacy” concept and hammered it into shapes that would be more easily and directly applied by law.

(and frankly, isn’t all law wizardry? The application of will and language to shape reality; creating changes in the world through the power of the mind. Also: a lot of robes.)

(and yes, they’re privacy torts, not “secrecy” torts, but the Harry Potter riff doesn’t work nearly as well that way, and this is how I choose to spend my Sunday mornings, so there.)

When Warren and Brandeis kicked off the right to privacy, they summed it all up by essentially saying their big idea would be more likely to live as torts — people suin’ people, for the layperson — than public law (like criminal law). In “The Right to Privacy,” they identify likely remedies as tort in all cases, and, rarely, injunction. They frame criminal law as desirable but unlikely without legislation.

So, following “The Right to Privacy,” the idea just kind of… hangs there, like an indecisive seagull, for decades. It pops up in all sorts of scattered cases, but not particularly cohesively.

Then, boom! 1960! Ben Hur! Green Eggs and Ham! The Flintstones! And William Prosser writes “Privacy” in the California Law Review.1William L. Prosser, Privacy, 48 Calif. L. Rev. 383, 388-89 (1960)

This wasn’t Prosser’s first kick at the privacy law can.2For a very good overview of the WAB -> Prosser lineage of privacy and torts, and more on pre-’60 Prosser, Richards and Solove’s “Prosser’s Privacy Law: A Mixed Legacy” (California Law Review , December 2010, Vol. 98, No. 6 (December 2010), pp. 1887-1924) is terrific, both as an overview of the evolution of privacy and tort, and a criticism of Prosser’s work and legacy. Working paper at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1567693

It was an analysis of decades of tort privacy cases, culminating in Prosser drawing four broad categories of privacy-as-tort:

  1. Intrusion upon the plaintiffs seclusion or solitude, or into his private affairs.
  2. Public disclosure of embarrassing private facts about the plaintiff.
  3. Publicity which places the plaintiff in a false light in the public eye.
  4. Appropriation, for the defendant’s advantage, of the plaintiffs name or likeness.

Let’s bear in mind for a second that this was originally U.S. writing, and while broadly adopted, was adopted chiefly in American courts. But Canadian courts have steadily been drawing on Prosser’s tort categories as well, with the fourth tort being recognized in 2019.3 Some coverage here: https://www.cantechlaw.ca/news/ontario-court-adopts-false-light-publicity-privacy-tort

Taking it back to high ed marcomms, all four are squint-and-you-see-it applicable to photo and video capture and consent.

There’s a bit of awkwardness here in terms of how I’m writing, too. At the moment, I’m moving more or less sequentially through time; some of the tort wrong that Prosser identifies become clearer in terms of their application through future cases.

The most applicable of the four are the first and fourth, on their surface.

1. Intrusion upon the plaintiffs seclusion or solitude, or into his private affairs.

Jones v Tsige is the 300-pound gorilla intruding on seclusion in Canadian courts. Where does a 300-pound gorilla intrude on seclusion? Anywhere it wants. In a nutshell, Tsige abused her access at a bank to spy on the financial records of Jones — who worked at the same bank, and had been partnered with Tsige’s ex.4You can read the case at https://www.canlii.org/en/on/onca/doc/2012/2012onca32/2012onca32.html

The big quote is p. 71:

The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.

Sneaky peeks at people’s bank records are a bit of a leap, in the abstract, from “intrusion upon seclusion” in other areas, but the key point here is that Canadian courts recognize that seclusion is a thing, and you can intrude on it.

Let’s also bear in mind that my overall arc here is unpacking consent issues with a particular interest in “public” spaces (and this gets surprisingly fungible in higher ed settings). At first, it seems like “seclusion and solitude” and “public space” is antithetical… but stay tuned, it’s a more nuanced conversation than you think, and part of a larger philosophical and legal conversation about privacy and context that’s been raging for decades now, and will be covered in upcoming posts.

For now, let’s take it on faith that yes, even if somebody is in a public area, you can still intrude on their seclusion or solitude. And that photographs can be as intrusive as snooping in bank records. I know that might not be satisfying at the moment, but trust me, we’ll get there.

4. Appropriation, for the defendant’s advantage, of the plaintiffs name or likeness.

The last — “appropriation for advantage” is the other clear issue. Again, this is something that seems kind of clear-cut at first. It’s easy to trace this as it pertains to for-profit businesses; if you snap a picture of me without me knowing, and suddenly it’s on billboards coast to coast advertising beer, that’s a no-brainer (and for “false light” as well — what if I’m a known speaker against alcohol? A youth pastor?).5A good overview of appropriation at the McCarthy blog, here: https://www.mccarthy.ca/en/insights/blogs/snipits/future-everyone-will-have-their-personality-misappropriated-15-minutes

In higher ed, though, we tend to self-identify as the “good guys,” and my feeling is there’s a fuzzy sense that we can get away with more because (a) non-profit, (b) education is good, and (c) kind of a wibbly crossover between the oft-mentioned, oft-discussed fair use (U.S.) fair dealing (Canada) exceptions to copyright kinda sorta making us think that everything a college or university does is fair-dealing-esque.

But… well, no. We might be “good guys,” but we’re not exempt from the same strictures that govern for-profit business when it comes to exploiting images for “advantage”. Note that word — it’s advantage, not gain. The assumption that we’re not making money from something doesn’t move us out of the ‘advantage’ zone. Higher ed is in this very weird space where we’re collegial but also competitive — universities are notionally supposed to all get along and work together, but at the end of the day we’re also out there pitching and brawling to attract the very best students, researchers, research funding, donors… “advantage” starts shading very differently when you think of the various competitive spaces we exist in.

Does this violate copyright? Trademark? Is it passing off? We’ll get to all of these questions in… it’s looking like 2023, based on my current pace of work.

Stepping into more explicit legislative language, in Canadian jurisdictions where violation of privacy is a statutory wrong, it still paints a much broader picture than “profit”. For instance, in B.C.:

[3](2) It is a tort, actionable without proof of damage, for a person to use the name or [likeness, still or moving] of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose.6Hie ye to the B.C. Privacy Act – https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96373_01 “sale of or other trading in, property or services…” I wouldn’t bet the farm on wriggle room here.

“Appropriation” here is a slippery legal construct because there’s a ton of overlap with prior torts — both misappropriation of personality, and “passing off,” which are also their own things. To my limited knowledge, there’s no precedent in Canada for the specific Prosser appropriation tort, as a privacy action, without that gloss into the other areas as well. But my knowledge is admittedly limited.

And — and this is important — to date, misappropriation of personality (the non-privacy-related tort) has generally been advanced by famous people, in pursuit of damages that would equate to royalties received had they granted permission for their likenesses to be used.

To date — to my knowledge — there hasn’t been a “normal citizen” misappropriation case before the courts that’s seen success. A recent case in point is Hategan v. Farber, 2021 ONSC 874 — Hategan, a former member (and self-declared “former female face”) of the Heritage Front7let us sit for a moment with the fact that the “former female face” of the Heritage Front was basically named “Hate again,” and marvel brought suit against Farber, a television host, for appropriation of personality for… essentially, talking about her, it looks like. The judge, in a claim for summary judgment:

Yes there is a tort of wrongful appropriation of personality. This tort is not made out. It is not ever a “close call”.8Get your law readin’ on at https://www.canlii.org/en/on/onsc/doc/2021/2021onsc874/2021onsc874.html, at 117. Incidentally, this is a great rubbernecking case if you’re into reading court decisions that don’t go at all the way the plaintiff thought they would.

So there’s clearly a commonly understood sense of what appropriation of personality entails, and to date it’s been a hard threshold to reach. But that doesn’t mean impossible, or impossible forever.

What about the other two?

2. Public disclosure of embarrassing private facts about the plaintiff.

“Public disclosure of embarrassing facts” is less easy to see in higher ed marcomms; first, there’s a strong internal inclination to capture and show positive things, so it’s hard to easily see a marcomms agenda that sets out to disclose anything that somebody might find untoward.

It’s not without precedent in Canada — as Liam O’Reilly details, there have been a few cases of legal reasoning that hinge on this aspect of tort.9I am grateful to Mr. O’Reilly — he’s literally done my homework for me here, including a dive into small claims court cases: https://liamoreilly.ca/2017/07/31/public-disclosure-of-embarrassing-private-facts/ A minimal award, but still a finding of this wrong, in Action Auto Leasing and Gallery Inc v Gray. The most significant — Jane Doe 46544 v ND.10Over here at https://www.canlii.org/en/on/onsc/doc/2016/2016onsc541/2016onsc541.html — really leaned strongly into the tort, but was later set aside, so its value as precedent is gone (although the legal reasoning remains).11https://www.canlii.org/en/on/onsc/doc/2016/2016onsc4920/2016onsc4920.html — this is a point at which I confess that I’m still a limited scholar in terms of my reading-law ability — there seem to be a number of procedural issues here for the setting-aside, but no actual flaw in the judicial reasoning or application of the tort per se

3. Publicity which places the plaintiff in a false light in the public eye.

There was a bit of ballyhoo when this finally hit Canadian judicial decisions as the “last Prosser tort” to be recognized in the country.12A good summary at Can Tech Law – https://www.cantechlaw.ca/news/ontario-court-adopts-false-light-publicity-privacy-tort

In Yenovkian v. Gulian 2019 ONSC 7279, a judge went above and beyond previously established tort awards in finding against a husband who had made wildly inaccurate public claims about a spouse in a custody case. This is one of the introductions of “cyberbullying” into Canadian law, and the judge actually pulls directly from the American Restatement of Torts:

Publicity Placing Person in False Light

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.13Yenkovian decision at https://www.canlii.org/en/on/onsc/doc/2019/2019onsc7279/2019onsc7279.html, above quote at 170

So we’ve got the U.S. idea, and even the test, now in Canadian law as precedent.

It’s… challenging to see how this would affect my current point of focus, which is photo/video capture and consent. But it’s interesting that it’s on the books in a broader sense, and may be worthy of note in higher ed in general, considering the sheer volume of social media drama/noise that can be generated during things like, say, student council elections.

The other thing to note is that in a general sense, informed consent solves everything in terms of the above tort categories. Eh, almost everything. And this is where we get into the philosophical foundation versus the practical elements of consent management.

I kind of want to park that for now, because a lot of the case law stuff coming up starts overlapping with the philosophical stuff that’s also coming up. Suffice it to say that there’s a natural tension in consent formulation: the consent-seeker is best served by consent that is broad, general and all-encompassing. But the notion of informed consent is best served by consent that is specific and well-articulated.

This distinction becomes clear when you start thinking of the outcomes of these torts, particularly #3 and #4. Let’s stay mindful of the overall needs of the institution’s marketing and communications mechanisms. A photo taken of a student doing one thing at a particular place and point in time could potentially be re-used for a radically different purpose. I may actually write up an incident from my own career as a case study next week.

This could conceivably trigger various Prosser torts in various ways, unless consent is either amazingly broad at the moment of capture (and consent well tracked), or a lot of effort is put in to re-seek consent for new purposes as they arise.

“No, honey, I can’t help with the dishes, I am busy drawing a mid-20th-century lawyer as a wizard and individually drawing a lot of tiny stars and moons that must all be coloured for my blog.” — future quote raised at a divorce hearing

A final note on Prosser — he definitely moved privacy law from a kind of abstract notion in to something with more form and substance — as we can see above, his American formulation of privacy torts has now made its way completely into Canadian law. But that doesn’t mean Prosser was all that and a tube of Pringles. I’m grateful to Rchards/Solove’s “Prosser’s Privacy Law: A Mixed Legacy” as a great read that identifies some key gaps in Prosser’s proposed formulation, and some inadvertent damage it may have done in the long haul.14That link once again: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1567693

Next week, a quick case study of how the higher ed marcomms machine can run into trouble when it repurposes photos. After that, we’re going to take a look at some privacy law theory that develops after Prosser, and the growing legal theory that context might be super important (spoiler: it is!).

May 23, 2021

Soundtrack:

Georgia Anne Muldrow: VWETO III

Vegyn: Only Diamonds Cut Diamonds

Murcof: The Alias Sessions

Categories
Consent Higher Ed Law LLM Marketing & Communications Photography Privacy Videography

Warren & Brandeis: Photography in Privacy’s DNA

photographer being watched by WAB

Hey! It probably goes without saying that I am not a lawyer and nothing in this blog is legal advice. But I’m saying it anyway!

The first thing we read in my privacy law class was “The Right to Privacy,” Samuel D. Warren and Louis D. Brandeis.1Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). First published in the Harvard Law Review in 1890, it’s generally accepted as the initial stake in the ground for privacy rights. While there’s a lot that follows in the intervening 130-plus years, it firmly establishes the right to be “let alone,” a phrase made famous again in 1955 by Greta Garbo (and repeated in 50% of law school papers on privacy).*

Here’s “The Right to Privacy”, if you want to read (or re-read) it.

When you read it, the inciting behaviour is clear: gossip, specifically “society columns” in the newspapers of the day. Look at how tightly this article is bound to photography. Taking the introduction of “to be let alone” in the article, photography kicks off the very next sentence (emphasis mine):

Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone.” Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life…

And we’re off to the races! Thanks to Warren and Brandeis, hereafter WAB, because it’s short and also because it’s a lot like WAP and that’s fun for me.

I’m making a big deal out of this because as a higher ed marketing & communications professional, photos are a very big deal. And this is (broadly speaking, there are antecedents2I highly recommend Solov’s “A Brief History of Information Privacy Law” — Solove is going to come up a lot in this series, I think, including next week when we look at Prosser. Daniel J. Solove, A Brief History of Information Privacy Law in PROSKAUER ON PRIVACY, PLI (2006).) — WAB even mention that it had “already found expression in the law of France”3WAB’s footnote mentions the Loi Relative a la Presse of 1868, which is very elusive to find, or find writings on; if you are or know a French historical legal scholar, maybe you’d have better luck than I tracking this down — the kick-off for the very notion of privacy rights, which are the legal construct that leads to photo/video consent as both a practical and philosophical necessity. We can’t talk about consent without talking about privacy… and we can’t talk about privacy without talking about WAB.

So here we are, discovering that photography is baked right into the history of privacy-as-a-right.

It’s no secret that “The Right to Privacy,” while far-reaching in scope, was inspired by Warren’s profound irritation with what we’d call paparazzi today, who crashed and wrote about a society wedding.4Prosser, W. (1960). Privacy. California Law Review, 48(3), 383-423. doi:10.2307/3478805 The word “paparazzi” was still 70 years from being coined — eponymous for a character in Fellini’s La Dolce Vita — but clearly photographer-as-pest was enough of a common social ill, even in 1890, to resonate.

Look at this jerk with the punchable face.

It’s fun, if pointless, to wonder whether the idea of a right to privacy would have arisen, and in what form, if photography hadn’t gone the way it had — or if people had left the family wedding alone, or if WAB had thicker skins. Things rolled out the way they did. It’s interesting, though, to look at subsequent developments in privacy law and note how correlated they are with identity and revelation: presentation, photography and video as the drivers of a lot of our notional understanding of privacy.

So what is privacy, as they frame it?

Privacy is a negative right

Right out of the gate: privacy isn’t a right to do something, it’s a right to not have things done to you. WAB: “It is like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed.”

It’s not copyright, libel or slander

WAB go to some pains to ensure that the right to privacy is distinct from existing rights. Copyright is identified as a branch of property law. They do, however, use the idea of privacy law to colour in areas around copyright law. Where copyright law would protect a literary or artistic work, it still doesn’t prohibit the sharing of details or facts about people’s lives. WAB sketch out scenarios of letters between husband and wife, or a catalogue of gems that would be ruinous to a jeweler if released. “If the fiction of property in a narrow sense must be preserved, it is still true that the end accomplished by the gossip-monger is attained by the use of that which is another’s, the facts relating to his private life, which he has seen fit to keep private.”

Libel and slander are deemed to protect “the material, not the spiritual” (197) — protecting from damage and injury to reputation. The proposed right to privacy, unlike libel / slander / defamation, does not offer the truth as a defense, however.

It’s constrained by practical matters

The authors also set out some fences that mesh with fairly common-sense propositions: once something is published (by consent), it’s no longer private; matters “of public interest” aren’t private (so publishing the backroom dealings of a politician are fair game, for instance). Constrained “privileged” publication, such as in court, government committees, or other public bodies, don’t violate the right to privacy. Oral violations would likely be without redress, because the damage would be very limited.

No malice required

They also take pains to point out that an absence of malice is no defense — that personal ill-will is not a requirement of a violation of the right. This is a through line with tort law — ill intent generally isn’t necessary to be held responsible for intentional acts.

Setting the table for 130+ years of privacy evolution

Warren is the guy who looks like a turtle soup magnate on the left, Brandeis on the right looking like he’d be right at home presiding over an orphanage in a Dickens novel. It’s fun to imagine them popping their monocles over gossip columns — but this was a big idea; important work, that would leave gossip in the dust over the next century-plus and become a foundational concern for society today.

They also weren’t shy about tossing a little hyperbole in the mix:

If casual and unimportant statements in a letter, if handiwork, however inartistic and valueless, if possessions of all sorts are protected not only against reproduction, but also against description and enumeration, how much more should the acts and sayings of a man in his social and domestic relations be guarded from ruthless publicity. If you may not reproduce a woman’s face photographically without her consent, how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination.

Although privacy law now covers everything from financial data storage to how censuses work, my interests, as somebody who works in higher ed marketing and communications, are still in roughly the same ballpark as WAB. As somebody who is responsible for creating, and publishing, a lot of pictures and videos in a lot of different ways, how can I do that in a way that upholds the spirit of a right to privacy, while still operating effectively and efficiently?

It’s a compelling question, for me, and I’m going to keep diving into it for a while.

Sidebar: so who was Judge Cooley?

Because I get curious about things, I couldn’t help wondering who “Judge Cooley” is. He’s actually the cited author of the four-word “to be let alone” phrase that anchors this whole thing. It’s like if I wrote a long essay saying that somebody should, as the Fonz says, “sit on it”, and I become known as the genius who first established that somebody should sit on it. I should hope that future scholars would one day work to uncover this mysterious “Fonz” from who these words of wisdom came.**

Cooley (Thomas M.) seats the right “to be let alone” in a general treatise on torts from 1879; in Chapter II of A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract, “General Classification of Legal Rights,” he lists “Security in person” as one of the rights that a government is expected to recognize.

In that vein, and following “Right to Life,’“ “Personal Immunity” is the second right he lists; and here’s where we get to it (emphasis mine):

“The right to one’s person may be said to be a right of complete immunity: to be let alone. The corresponding duty is, not to inflict an injury, and not, within such proximity as might render it successful, to attempt the infliction of an injury. In this particular the duty goes beyond what is required in most cases; for usually an unexecuted purpose or an unsuccessful attempt is not noticed. But the attempt to commit a battery involves many elements of injury not always present in breaches of duty; it involves usually an insult, a putting in fear, a sudden call upon the energies for prompt and effectual resistance. There is very likely a shock to the nerves, and the peace and quiet of the individual is disturbed for a period of greater or less duration. There is consequently abundant reason in support of the rule of law which makes the assault a legal wrong, even though no battery takes place. Indeed in this case the law goes still further and makes the attempted blow a criminal offense also…”5Cooley, Thomas M. A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract. Chicago: Callaghan and Company, 1879; pages 23, 29.

This is actually pretty interesting. Cooley is engaging in a pretty straightforward description of assault and battery. (Fun fact: in Canadian law, there is no “battery” in the Criminal Code — “assault causing bodily harm” carries the weight there. But “assault” and “battery” are still torts; as you can infer from the criminal distinction, “battery” is the physical harm portion, and “assault” is the menace. If I run up to you with an axe, screaming, and swing the axe but stop it an inch shy of your face — that’s still assault, even if no physical harm is done. It’s actually a pretty broad category of things (including throwing a cat!).6He doesn’t cite the case here, but if a lawyer is going to say that throwing a cat is assault, I’m not going to miss this opportunity to write about it. John Erikson, “What are the different types of assault charges in Canada?” at https://ericksonlaw.ca/different-types-assault-charges-canada/

So, in A Treatise on Torts, Judge Cooley is describing “a right of complete immunity: to be let alone” in the context of the legal wrong of assault.

WAB have picked up Cooley’s turn of phrase originally used to describe assault — inflicting credible menace on somebody — and turned it to the purposes of privacy.

This is not an accident — they even describe the evolution of assault from battery on the previous page. Judge Cooley and A Treatise on Torts would have been a seminal book by 1890. So it’s fair to say that WAB knew exactly what they were doing with the lift, knowing that their audience would also likely be familiar with Cooley: invading my privacy is a form of assault.

Also worthy of note — significant mainly in one of the exceptions — consent is also part of the DNA of this first stake in the ground. It comes up a few times in the document, particularly as one of the limitations of the proposed right. Interestingly, the paper’s longest footnote concerns consent via copyright, contract and photo reproductions, substantially quoting North J in Pollard v Photographic Co. on contracted use of negatives.

And — also worthy of note — is the fact that on their surface, WAB, through one lens, failed. If they were writing in the hope of stopping the dissemination of society gossip, a quick trip to a supermarket checkout counter — or any news website — will show that society gossip, evolved into celebrity gossip, is far from gone. The seeds of contemporary gossip-mongering are captured in their very own exception to the idea of a right to privacy: “The right to privacy does not prohibit any publication of matter which is of public or general interest.” This is a massive and swampy grey area, that we’ll get into with century-later court cases involving supermodels and princesses. Stay tuned! But if their goal was to shut down the gossip industry and ensure that the private lives of the rich and famous could not be touched by the grubby, ink-stained fingers of those filthy journos… this was far from an unqualified success.

So let’s keep the following in mind as we meander through the evolution of privacy as a notional right, with a particular interest in privacy in public…

  • Photography is comingled with the genesis of a legal right to privacy
  • As is consent (but as a factor that waives privacy rights)
  • The authors lifted language used to describe assault to define this right to privacy

Next week: Prosser, and the next big hop forward in conceptualizing privacy… for good, and for ill.

*In one of pop culture’s more famous misquotes, she was frequently reported as saying “I want to be alone,” which she clarified in a 1955 interview as having actually said “I want to be let alone.” If you don’t grok the distinction, read on!

**It turns out that the Fonz didn’t actually say “sit on it” very often — it was more commonly said by Joanie and Mrs. Cunningham. Ayyyyyyy!

May 16, 2021

Soundtrack:

Phil Collins, No Jacket Required

Buddy Rich & Max Roach, Rich vs Roach

Sleater-Kinney, All Hands on the Bad One

  • 1
    Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
  • 2
    I highly recommend Solov’s “A Brief History of Information Privacy Law” — Solove is going to come up a lot in this series, I think, including next week when we look at Prosser. Daniel J. Solove, A Brief History of Information Privacy Law in PROSKAUER ON PRIVACY, PLI (2006).
  • 3
    WAB’s footnote mentions the Loi Relative a la Presse of 1868, which is very elusive to find, or find writings on; if you are or know a French historical legal scholar, maybe you’d have better luck than I tracking this down
  • 4
    Prosser, W. (1960). Privacy. California Law Review, 48(3), 383-423. doi:10.2307/3478805
  • 5
    Cooley, Thomas M. A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract. Chicago: Callaghan and Company, 1879; pages 23, 29.
  • 6
    He doesn’t cite the case here, but if a lawyer is going to say that throwing a cat is assault, I’m not going to miss this opportunity to write about it. John Erikson, “What are the different types of assault charges in Canada?” at https://ericksonlaw.ca/different-types-assault-charges-canada/
Categories
Consent Higher Ed Law LLM Photography Privacy Videography

Set Sail: for Law Island!

Set Sail Law Island

Law ho!

If you noticed that last week was a week off, it’s because I’ve been thinking about what I’m doing here.

Not in a bad way; just in a “what are my goals, and how is this helping me achieve them” mode. I’ve been writing in this space about higher ed marcomms for a while, and kind of hopping around based on what is on my mind on any given week.

Magpie mind! It’s come up in this space before. It’s the classic “blessing and a curse” — lots of fun to have, and you do all sorts of neat stuff, have lots of hobbies, learn tons of things. But you tend not to get anywhere, or at least not as fast, because the gritty monomania that makes people succeed is lacking.

I’ve been mulling this over for a while, and in a way the decision’s been made at least partially for me: I’ve been chosen (by vote! That’s flattering) to give a talk at #PSEWEB, a post-secondary higher education marcomms conference, this July. The subject is privacy, consent and image capture — my major paper subject last term, and something I’m very interested in pursuing.

So I need to prepare for that, and that seems like a solid reason to lean in a law-ward direction in this space, and talk more frequently and explicitly about the LLM.

This makes me nervous for two reasons:

First, I think I might be on the wrong side of the Dunning-Kruger effect* on this one: one semester of privacy law studies does not an expert make, nor a research paper on privacy and consent, even if you put a lot of work into it. I’m excited about the topic because it’s exciting to me, so I plunged hard into it in Q4 of 2020, but law is big and weird and excruciatingly niched. There’s more I don’t know than do know, and I’m not keen on putting bad information into the world because I don’t know what I don’t know.

Uncharted waters! Where I may well sink.

Second, I have no idea if this is interesting to literally anybody else. Quite a bit of this space has been dedicated to ideas that I think have some utility — an explanation of social media algorithms for the uninitiated, a novel acronym for triaging content decisions, a chart that maps out components of market research results. This will be a bit more of a dig-down. That said, this is a young project, so it’s a really good time to do this — it’s not like I’m risking a legion of followers, or making a living from this. There’s no real consequence to indulging myself.

So from now til July, you can expect to see a lot more privacy law — both theory and case law — in this space, focusing on Canada (because that’s where I am), along with some approaches to consent and consent management.

Law Island is ruled over by a giant set of poorly drawn scales. It is actually adjacent to Skull Island, and if he ever learns to swim we can look forward to the adventures of Judge Kong, who is like Judge Judy but much larger and less sassy.

Are you excited? It doesn’t matter! Because I’m excited! And I’m doin’ this thing! Pow!

Jotting down some ideas for the coming weeks:

  • The origin of privacy law as a response to evolving photograph technology
  • The evolution of context as a key factor in privacy
  • Privacy in public: UK and European court precedents
  • Privacy in public: evolution of legal thought
  • Case law: Aubry v Éditions Vice-Versa Inc and its impact in Canada
  • Case law: recent small claims courses and context versus public photography
  • Journalism exceptions and how they apply in higher ed
  • Consent-seeking scenarios and approaches
  • Explicit vs. implicit consent (mapped as “active” and “passive” methods
  • “Informed” consent and reasonable personhood
  • Contemporary writing on consent and privacy in public
  • How to attach consent to digital files — experiments, successes, failures
  • Contracting for consent: how to assure compliance when hiring photographers and videographers

As you can see, there’s a lot of stuff going on in this space. I’m getting pretty jazzed up just looking at the above list; it’s something I’ve found myself very passionate about and am looking forward to unpacking. I hope y’all are too!

*Looking it up, I see it’s under some question, so maybe it’s more a metaphor than a real thing at this point. The chief issue seems to be that people who cite the Dunning-Kruger effect don’t really know that much about the Dunning-Kruger effect’s subtleties and lean too hard into the “idiots with a bit of knowledge think they know everything” concept. So the problem with people citing the Dunning-Kruger effect is they don’t really know that much about it, but think… they know… hang on…

May 9, 2021

Soundtrack:

Hopeton Lewis – Take It Easy With The Rock Steady Beat

India Jordan – Watch Out!

Angel Olsen – All Mirrors

Categories
Marketing & Communications

All Marketers Should Make Comics

Make Comics

Especially the writers.

In a role where I’m part director and part do-er, I keep a very active hand in everything from composing Tweets to writing five-year plans. I came up through the business as a mutt, with everything from community radio to professional journalism to strategic marketing under my belt.

But among all the past experiences, I think comics writing has been the most valuable.

It was never my job, in the sense that it was paying me a full-time salary. At the best, I got pizza money; for the vast majority of my work, nothing but the joy of doing it. There was one time where a creator-owned series I did got optioned and was being pitched around for a prestige TV adaption, but that’s a story for another time.

I’m slowly picking up old comics project and adding them to the blog; it’s a bittersweet experience, to be honest. So many great ideas and passion that never quite made it over the hump to being well recognized or self-sustaining.

But the joy was in the doing, as my friend Adam reminded me recently.

It was also in the learning!

I legitimately believe that every creative person should try comics, for a while, at least once. Not just one page, and not just writing, but the whole process. I’ve been a writer for 99% of the comics I’ve done, but have tried my hand at full process at things like 24 hour comics jams. I was a very good artist when I was in the third grade, peaked in the fifth grade, and think I can now draw about as well as most fifth-graders. It doesn’t stop me from making comics, and it shouldn’t stop you either.

At the moment, though, let’s talk about marketing, writing, and writing for comics.

What does writing for comics teach you?

Economy of language

This is tops. Especially in some formats of comics. I’m in the process of moving a decade of a daily strip I did with my good friend and brilliant art madman James Duncan to the blog. It was a M-F four-panel comedy strip that was also a serial story, about a man who was bitten by a radioactive man and gained the proportionate abilities of a man. It was called Man-Man.

Here’s the thing about a four-panel daily strip: it has to be punchy. You have four panels a day to tell a story. Given panel size constraints, you really shouldn’t have more than two people on a panel, sometimes three. You shouldn’t have more than 10 words in a word balloon.

So — while it never paid in money — writing a long-form serial adventure, that unfolded in four panels a day, where there were never more than two people speaking at once, and only speaking in bursts of 10 words or less — it paid in experience.

I am a wordy SOB, and this was hard. Bleed-from-the-eyes hard. It was not, admittedly, super funny sometimes (that’s on me, not James). But expressing what needs to be expressed — and striving to end in a joke every day — taught me in immeasurable amount about compact writing.

Image/text meshes

Never tell what’s showing, is essentially the golden rule. If a character is pulling a gun, having them say “I’m pulling a gun!” is pointless. If the artist has invested the on-panel action in the gun-pulling, he’s freed you up to have that character say something else entirely. It can be prosaic and additive (“I’ve been waiting five years for this, Tompkins!”), or show disassociation (“Nice day for a picnic, isn’t it?”) or even lunacy (“The banana people live under the stairs!”).

Point being, getting a handle on how text should complement image, and not be redundant to it, is critically important. Text can even contradict an image, for some sort of jarring narrative effect, but it’s another form of economy that comics teaches you real fast.

The passage of time, and scenes

Scott McCloud, certified genius and comics-maker, talks about this a lot in his book Understanding Comics, which I’d argue should be in every creative’s library. The space between comic panels (“gutters”) contain fungible amounts of time and movement, and every unit of comic (panels) can leap through time at the speed the author desires. I’m mildly mangling the word “fungible” here because it’s kind of an exchangeable commodity, in that you can choose to have the gutter or larger panels, and the division depends on how you want the passage of time, or a split in locations, to be perceived in the narrative — going full comics nerd at this point, sorry.

It’s a low-cost, intensive way to really understand how time works in narratives, and a great way to cut your teeth for future video production. Will your next shot be the next moment in a sequence, or five years later? Will your next shot stay in the same place, or take you to a new location?

Narratives

I call everything I do “storytelling” in internal conversations, which I’m sure makes some of my colleagues think I’m a pretentious weirdo sometimes. But they are! Every social media post is a story. Every news item is a story. Every research profile is a story.

Comics make you tell stories while thinking on that image/text mesh plane. Above and beyond that mesh, you’re also thinking of beginnings, middles, and ends. This isn’t exclusive to comics, but it separates the good’uns from the bad’uns: what’s your act structure? What are your impact points? What do you need a full-page splash for, versus a tiny inset panel?

Tell a story in 24 pages of nine-panel grids. Then tell a story in a single page with 12 small boxes of art and words. Then tell a story in a four-panel comic strip. Then in one big image/text combo.

Once you can get ideas down in a single panel that have a beginning, middle and end, and marry compelling art with prosaic text, you’re ready to write a tweet. Or film a killer Tik-Tok minute. Or even write a 3,000-word feature, but mindful of what pictures you’ll need at the other end to make it sing.

Infinite budget

The project that broke me was a crazily ambitious series called Rise, Kraken! that at one point had a group of agents for an international crime organization called Kraken trapped in a facility with killer panda bears that spoke through Speak-n’-Spells grafted to their chests, being pursued by an army of hundreds of howler monkeys. At another point, zeppelins were being taken out by weaponized War Tubas. I haven’t put it up on the site yet because I need to find the art (and ask the artist for permission to post it). I wrote an adaptation of Captain Blood, the classic novel of piracy, with full-on multi-ship naval battles raging throughout the narrative.

Whee! There’s a million dollars in F/X right there. Take that, Spielberg!

More than any other medium, comics let you think big. As much as they force economy in the word balloons, there’s an infinite canvas of ideas and space you can draw on. There is no better training ground for the imagination.

Tremendous constraint

The infinite budget is trapped within a confined physical space. Usually something about as big as a letter-sized piece of paper. Sometimes just a comic strip. Sometimes a two-page spread. Your omnipotent powers are trapped in a box of a certain size, and you have to deploy all of the above skills — mastery of the economy of language, the word/text mesh, the passage of time and space — to have the infinite idea translate into a very finite space.

Learning to work with artists

Comics artists are not in it for the money. It’s a notoriously difficult profession to break into and stick with. Also true for writers, but while a writer can write a comic in a few working days, it takes an artist at least weeks to draw one. So the investment ration in the writer:artist relationship is way out of whack.

Since writers are also conventionally the “idea people,” it’s frankly a weird dynamic. Sometimes you luck out and find an artist who is completely in sync, and totally committed to the bit, and you take it as far as it goes.

Often, though, the artist — stops. They’ve found a better-paying gig (or a paying gig, period), or they’ve lost interest, or there isn’t a payoff to the project that seems evident and they want to focus on other things. Unless you’ve got a lot of money to pay them to follow through on things (I didn’t), you can’t really fault them. You can cajole, wheedle, promise, negotiate — but you’re ultimately powerless in the hands of another to see something get to fruition.

It gives you a ton of hands-on experience in sharing an idea, inspiring somebody to get on board with it, and then being as consistent and reliable as humanly possible on your end to ensure they get what they need to succeed. Some artists need things explained in complete detail. Others much prefer “I need a fight scene here, and it has to end like this.” You learn to work with all sorts of other creatives, from the affable to the temperamental.

[This is a bit of a demarcation line -- from here it’s less “what can you learn from working on comics for a bit” to a more diarist “what did I learn from a decade-plus of beating my head against a wall”. You can skip down to the end if you want to avoid the maudlin bits.]

Learning to pitch

This is getting a little far afield of what anyone can learn by doing comics for a while. But part of the process when I was trying to make a go of it was pitching comics companies, large and small, to see if they’d be interested in what you were doing. In retrospect, I think all of this would have been much easier if I’d been in a place where I could form relationships, instead of in Sherbrooke, Quebec for the bulk of this part of my life.

It was, again, a tremendous skill to learn. How do you package something to get somebody’s attention? What do publishers need to know vs what audiences need to know? How do you sell something with a 2-3 sentence email that entices somebody to take the time to open and read the attachment? It’s its own art, and concurrent with working as a copywriter, then strategist with a national ad agency, it was a good art to learn.

Learning to fail

You may have noticed I’m not a professional comics writer. Which is fine — with time and some tempering, I can even admit to myself now that if I’d been given the opportunity to pursue it, I’d be a solidly b-list writer: probably pretty good, with solid ideas and sound writing, but not up there with the Alan Moores and Grant Morrisons, Dwayne McDuffies, Kelly Sue DeConnicks, Tom Kings, etc. I would have been fine. I would not have been great.

Through one lens, my comics-writing “career” was a succession of failures — good ideas that never found an audience, drawing-board projects that never found a publisher, amazing ideas that never found the right artist to even push through the pitch phase.

The “coulda, woulda, shoulda” has been painful at times. Even loading old projects onto the blog (and I’m not even 10% there — I did a lot over almost two decades of striving) is bittersweet. No fewer than four of my former collaborators have their own Wikipedia pages now, which feels weird. My wife had to see me through a legitimate identity crisis about five years ago, when we went to a comics convention in Toronto and I ran into a few collaborators who were cutting their teeth at the same time as me and are now thriving in the industry.

For a very long time, though, I would get myself up, dust myself off, find as much passion for one project as I had for the last, and plunge back in. The “final” project was one I truly believed would set the world on fire, crashed and burned when the artist involved just decided to stop working on it with no further explanation, and that… capsized me. That was the hard stop — I haven’t written for comics in the decade-plus since.

Not the passion, though — that just started to go in other directions. Creativity at work, other personal projects — even, eventually, this thing right here. There’s no shortage of outlets for the creative spark if you’ve got it and want to invest it somewhere.

But I learned a ton from not succeeding. Every non-success was its own learning process, and contributed to all of the above — economy of language, an understanding of the mesh of art and language, developing a relationship with the passage of time and space. It also built scar tissue, and the ability to put disappointment behind you and move on to the next thing. There’s always a next thing.

In short, make comics

It doesn’t have to be a big thing. But you can do it today! Now! Grab a sheet of paper, draw some boxes, and have Stick Person 1 go on a little adventure. Think about the infinite possibilities inherent in that blank page, but also the tremendous constraints of that physical space. Hell, just take a bunch of panels from an existing comic and draw over the word balloons. But get in there and experiment. See how the words mix with the images and complement (or contrast) them.

I guarantee you won’t regret it.

April 25, 2021

Soundtrack:

Jason Collett, “Best Of“

AceMoMa, “A New Dawn“

Lo Talker, “A Comedy of Errors”

Categories
Marketing & Communications

The Lazy Man’s Burden

Lazy man struggling

I’ve been thinking a lot lately about a favourite phrase of my grandfather Shepherd’s — “the lazy man’s burden.” I’m not sure of its provenance, but he’d use it whenever we were visiting the cottage and he’d see me or a sibling staggering down the hill from the driveway, trying to carry too many things, dropping things and having to stop and pick them up, and so on.

It would have made more sense to make multiple trips with fewer items, but we were lazy. Staggering under the burden.

“The lazy man’s burden” — struggling with an unnecessary load, rather than doing a little more work that would have resulted in less effort and anguish overall.

Laziness on the brain

It’s been an exceptionally busy year for a normally busy job, and I can feel a certain… haste start to creep in around the edges of my work. Decades doing The Work has given me a sixth sense that starts to whisper you’re cutting corners in the back of my mind.

And sometimes cutting corners feels good. You’re getting things done! Knockin’ stuff out of the inbox! Ticking things off the list! Yeah!

On the cottage porch in the back of my mind, Grampa Shepherd, smoking his pipe and shaking his head, is rightly pointing out that the lazy man is creating burdens:

First — fast work sliding into sloppy work.

When I work fast it gets things out the door, to be sure.

But it’s an invitation to mistakes, and undoing a mistake is a massive investment of time and labour, not to say a significant loss of face. Deleting and retweeting a tweet, editing a Facebook or Instagram post, replying to comments saying “actually…” — it’s a lot more work than taking the five minutes to take a breath and compose something well would have been in the first place.

Lazy man
On the bright side, it looks like the pineapple’s gonna make it.

Second — production over people.

This one is more insidious. I work with highly gifted teammates, on both sides of the management structure. Amazing staff, great bosses.

The immediate instinct to just get it done or just fix it without having a conversation of what’s being done and why — or talking through a task that somebody else really should be doing, then having them do it, work through issues, and have them get it right — once again, it’s the lazy man’s burden. I’m doing things not because it’s the best way. It’s just the expedient way.

The galling thing is that I’m not only creating more work for myself by taking on too much — see the first point — but I’m making a system worse by breaking it. And I’m robbing other people of the opportunity to learn and do. I work with remarkable people who are up to just about any task; not delegating and training to just “get it done” is a bad habit to get into, and harms more people than just me.

Path, car, trees
Photorealistic rendering of the path to the cottage.

Checking my head

Like everyone in this work I feel burdened from time to time; that’s a good moment to head-check myself and ask if I’m burdened with good work, or if I’m taking on a lazy man’s burden, and it’s time to look at workload and pace. Doing the latter can be difficult. It should be — it’s the antithesis of the lazy man’s burden, and that means that’s the burden that probably should be borne.

Thanks, grampa.

Bonus scone recipe

I write these on Sunday mornings, and with a lovely day outside it felt like a scone kind of morning. These bad boys took about 40 minutes, pillar to post. Walnut pieces inside, some maple sugar sprinkled atop.

Scones!

2 cups fresh AP flour
2 tsp baking powder
1/2 tsp salt
2 tbsp. sugar + 1 tsp
1 1/2 cups coconut milk + 1 tbsp.
Any desired stir-ins (spices, dried fruit, zests, etc.)

Preheat oven to 425, mix flour, sugar and stir-ins in bowl.
Stir in coconut milk until just combined
Turn onto floured surface, gently fold 4-5 times for even texture/not sticky. Don’t overmix. Add more flour if dough sticky. Dough should be a ‘lovely texture’, not sticky / not dry.
Shape into 8-inch square, cut into 8 triangles using pizza cutter.
Keep pieces together.
Brush last tbsp. of coconut milk on top, sprinkle w/ tsp. of sugar.
Bake on parchment paper, top rack, 17-20 mins.
Let cool before reglazing (if desired).

April 18, 2021

Soundtrack:

Nathan Fake, “Blizzards”

Neko Case, “The Virginian” (from Truckdriver, Gladiator, Mule)

The Skatalites, “Hi-Bop Ska”

Categories
Marketing & Communications

We Are All in the Village With Allie

Allie Go'Rhythm in the Village.

We live in a village.

But it’s a weird village.

Anyone who has grown up in a small village (I did) knows that all villages are weird, in their own Robertson Davies Deptford kind of ways, but this village is weird.

The strange thing about this village is how people talk to each other.

There are lots of people here: Joe, and Mohammed, and Jessica, and Fatima, and Desiree, and Matt (that’s me!), and Dr. Pebbles the vet, and Gord the butcher, and Linda the florist, and so on.

But nobody talks to each other. When they have something to say, they all go to one person.

She lives in the middle of the village, and spends all day every day conveying information from one person to another. She is Santa Clausian in her powers to flit from eye to eye and ear to ear instantaneously.

But — regardless of her speed and alacrity (or maybe because of it), she is the conduit through which all talk passes.

If Joe wants to shout to the rooftops that his dog just had puppies, he goes to her to spread the news. She is the gatekeeper for Fatima to share pictures of the pie she just baked. Gord the Butcher is having a sale on Bavarian sausages, a recipe passed down from his grandmother — he goes to this woman. And so on.

Nobody can hear from anybody else except through her.

She controls what everyone in the village sees. There is no way for one villager to talk to another villager directly, unless she instigates that conversation.

Her name is Allie Go’Rhythm.

Here’s the thing about Allie.

Allie is, as stated, the gatekeeper for all news in the village.

She’s also… unpredictable.

She might share Joe’s puppy with everyone in the village, but she might just tell Fatima (because Fatima likes dogs) or Mohammed (because Mohammed is friends with Joe). Or both, or neither. It depends on what other news reaches her ears that she thinks Fatima and Mohammed might want to hear.

Allie has some sort of complex internal system, which she discloses to nobody, about what she’ll share, and with whom. If you look at its patterns, it makes a certain sort of sense, but there’s also a certain lurking dread that Allie is actually just clinically insane.

She remains the sole conduit for news-spreading, however. So if Gord wants to tell the whole village about his Bavarian sausage sale, he must go to Allie. And Allie may, or may not, spread the news.

Here are a few other things we know about Allie:

She’s selfish.

Allie wants to make sure people only talk to Allie. She’s greedy that way. She doesn’t want them watching Netflix, or going for a walk in the woods, or playing Frisbee with their dog, when they could be talking to Allie. So when Allie is deciding what news to share, she looks at the past history of the person she’s getting the news from. Have people been interested in Joe and Joe’s life in the past? Are people clamouring for more Joe? If yes, Allie will gladly spread Joe’s news far and wide. People love hearing about Joe! If Allie is talking about Joe, people will want to talk to Allie. And Allie only wants people to talk to her.

But if the last five or six times she’s shared Gord’s sausage news, people have grunted and walked away… Allie’s not going to tell people about Gord’s grandmother’s recipe. Gord seems to turn people off. Allie doesn’t want to turn people off… she wants people to talk to her, and only her.

The awful truth is I’m as proud of this as anything else in this post.

She doesn’t always tell the truth.

Allie has… a loose relationship with the truth and accuracy. She’s just sharing the news! She doesn’t make it. But if Matt’s wild stories about the mayor being a lizard person are getting people excited and engaged, and every time Allie shares a story about the lizard people theory the whole village gets hetted up and only wants to talk to Allie about lizard people — Allie loves it! She loves it when people talk to her! So she’ll happily share that news; if she’s called out, she might mention that the story seems a bit dubious. In some circumstances she might even stop listening to Matt. But generally speaking, Allie’s motivation is to keep people talking to Allie. No matter what. Allie’s really into politics, and controversy, and whatever keeps people engaged with and talking to Allie.

She spreads secondary as well as primary news.

Allie will also tell people how other people reacted to news. So if she only tells Fatima about Joe’s puppies, and Fatima doesn’t react, Allie doesn’t do much. She files it away in the “maybe Joe is boring and I should tell fewer Joe stories” pile. But if Fatima responds, then Allie judges Fatima’s reaction on kind of a sliding scale, and then decides which of Fatima’s friends to share her reaction with. A dry nod might not generate much. If Fatima smiles, Allie might consider sharing Joe’s news with some of Fatima’s friends. But if Fatima leaps up with a delighted laugh and claps her hands and says “how excellent for Joe!”, Allie will tell all Fatima’s friends how delighted she was — and in so doing also share Joe’s puppy news.

The important note there — Allie is still taking in, parsing, and distributing stories according to her inscrutable Go’Rhythm ways. Fatima and Joe might be conversing directly about Joe’s puppies, in a conversation Allie instigated, but how other people learn of this news is still dependent on whether Allie shares it, or not.

So Joe is compelled to make his puppy news as thrilling as possible. He’s competing with Matt’s loony lizard people theories! That’s a tough act to follow.

She knows and cares about your networks.

Allie cares about what the people in the village care about. And who. People can declare to Allie that they want to stay on top of news from certain other people or businesses. And Allie will deliver their news faithfully, to a point… if Mohammed says he’s interested in what Gord and Fatima have to say, Allie will share Gord and Fatima’s news faithfully with Mohammed. But if Mohammed declares he is friends with thousands of people, and following hundreds of businesses, Allie will fall back on her “boring/not-boring” dichotomy to decide what Mohammed needs to hear.

Allie can be bribed.

You can pay Allie money to have a much higher chance she’ll spread your news. She still might not! But she’ll at least consider it, and she only makes you pay for the news she actually spreads. This does not, however, affect Allie’s current opinion of you and your stories as “interesting and worth sharing” or “boring and not worth spreading.” Her contractual relationship to spread your news is totally disconnected with her daily news-spreading routines.

What does this mean?

We all live in the village. For whatever reason, the vast majority of us are here.

And we’re all subject to the whims of Allie Go’Rhythm. Our relationship with Allie, and our dependence on her, has had a number of consequences.

Our communication has drifted, over time, from detailed to symbolic. Busy people want to get as much news from Allie as quickly as they can. Allie wants to keep as many people interested as she can. So if we want those people to react when Allie shares news, and ensure Allie keeps sharing our news, we have to make that news as dramatic, arresting and exciting as possible.

In some ways, that makes us better communicators: more succinct, more mindful of getting to the core principle or point of things.

In other ways, that makes us worse communicators: sacrificing nuance, context and depth in favour of impact.

It also puts communicators into a terrible state of dread and uncertainty. We can tell Allie things, but we can never be certain who she’ll share them with or why. We make decisions about what news to share based on what news Allie likes to spread, not what news is important to us… or we choose to take risks on Allie’s largesse and tell the stories we think need to be told, and hope they find an audience if she chooses to share them. We run contests and hold events just to get villagers to tell Allie they like us, in the hopes she’ll share our news with them.

Here’s where it gets especially weird.

There’s more than one Allie.

There’s more than one storytelling network in this village.

Allie Go’Rhythm actually has a number of sisters, and they all run their own story-sharing systems. Some people like Allie T. Go’Rhythm more than Allie F.B. Go’Rhythm, others prefer Allie L.I. Go’Rhythm.

But all members of the Go’Rhythm clan share the same core attributes: they are the sole intermediary through which news gets to their network. They all want you to talk to them and never do anything else — especially not talk to another Go’Rhythm sister. Well, Allie F.B. Go’Rhythm and Allie I.G. Go’Rhythm are actually twins, and — that’s a whole other thing.

They’re also all slightly different, so telling Allie I.G. Go’Rhythm something that she spreads far and wide might have radically different results with Allie L.I. Go’Rhythm.

What’s your relationship with the sisters?

Do you spend your time courting one Go’Rhythm sister, learning the intricacies of her likes and dislikes, or do you woo all the Go’Rhythms at the same time, knowing that what works with some might not work as well with others?

Do you spend money on one Go’Rhythm because you think she talks to the villagers you want to reach? Or all of them? Or none?

When one of the Go’Rhythms has gone sour on you and your news, do you aggressively pursue her to win her back, or do you focus on the others, trusting that your natural charm will winnow you back into her good graces?

These are not questions with answers. Anyone who claims to know the Go’Rhythm sisters to the point of absolute predictability is a liar, or a fool mistaking good luck for pure knowledge. Some people have a better idea than others, and some have invested time and study to develop a very good sense — and even then, only a sense — of what a particular Go’Rhythm sister might like or do. But the sisters are fickle, and may change their own internal logic at a moment’s notice.

This is the village.

This is where we live; you can generously look at it as where we choose to spend time, or more negatively as where we’re all trapped. Ultimately, though, it is a choice, and it’s one that almost everybody has made at some point.

We all live here with Allie. Allie’s not going anywhere.

So we’re all finding ways to work with her and her sisters; changing what we say and how we say it, hoping to find favour, claiming genius when we do and cursing our bad luck when we do.

This is the village. Population… call it about four billion. That’s a lot of people.

All clamouring for Allie’s attention and good graces.

We work for managers, and clients, and bosses. We work for satisfaction and achievement and triumph. We work for good causes and for financial gain.

But at the end of the day we’re all working for Allie.

Categories
Marketing & Communications

Burritos and the F-Bomb

F-bomb and a burrito

Any higher education marketing & communications shop combines two vital mandates: being a strategic unit, and being a service unit. Running optimally, you’re both making decisions about how to plan and shape a long-term marketing and communications mandate, but also handling requests, triaging emergencies, and helping other units who need expertise or support.

Somewhere in the mix lies decision-making: occasionally proactive, when you can sit down and take a breath and look at what’s coming and plan appropriately. Usually, though, reactive — you’re getting a lot of requests for coverage or support, you’ve got finite resources to provide it, and you’re making allocation choices about where to put your resources. You need to get as much attention as you can muster, using as few resources as possible.

It’s time to use the F-BOMB.

It’s an old-timey bomb, from the days when they used to tie marketers to train tracks.

No, not that f-bomb, and you knew that already. It’s a goofy acronym*:

  • First
  • Best
  • Only
  • Most
  • Bluff

F-BOMB isn’t perfect, but it’s a good rule of thumb for juggling ideas and priorities. Breaking it down a bit more… let’s look at these, and also talk about burritos, because I like burritos.

Drawing this burrito took a surprising amount of work and I’m going to make the most of it.

First

Essentially “new”, but “N-BOMB” doesn’t work. Is this something you’re doing ahead of everyone else? Breaking new ground, blazing new trails? Newness is great! It’s a chance to display innovation and novel thought while distinguishing yourself in a crowded world. Are you the first burrito joint in town? Fly that flag!

Best

Where are you superior? Ideally in an area where people are genuinely interested in your superiority. Any time you can make an honest claim that you’re ahead in your field, that’s a good place to go. If your burritos are quantitatively the best, or even qualitatively, tell people why you have the superior burrito.

Only

This, and “most,” get deeper into the areas where you really need to do some research and make sure you’re “only” in an area where people want what only you do. I could be the only person in town who sells burritos made from ground beef and bell pepper stuffed into used gym socks, but that doesn’t make it a good idea.

Most

See above. It’s a good claim, if you’ve got the most of something people want. “Most” doesn’t have to be tangible, but if you move into non-physical spaces “most” and “best” get kind of interchangeable. “Most” also risks moving you into vanity metrics that don’t actually mean anything at all… when your correlation to “most” isn’t an absolute, but a qualifier like “per capita” or “per square foot,” watch out: you might be effectively saying nothing at all: a two-house, one-business town where the sole business sells burritos might offer the most burrito restaurants per capita of any town in the world, but it still shouldn’t be a tourist destination for burrito fans.

Bluff

Got nothin’? The Hail Mary pass is to look for things that other people do but nobody talks about and hurl the ball in that direction. Every burrito restaurant in town provides free guac, but if you’re the only burrito restaurant advertising free guac, for a little while, at least, you might as well be the only one doing it.

The F-BOMB is also combinatorial

If you have more than one first, you can take the F and work your way back down the list: FBe is better than FO, FM, or FBl. If you’re the best in several areas, BO is better than BM (yes, I see it too) or BBl. And so on.

This is not a replacement for an actual marketing and communications plan! It’s just a fun thing to look at when you’ve got a lot of options in front of you and have to make a command decision. There are a lot of factors that go into your decisions, but F-BOMB is a tried and true starting point for fairly reasonable decisions.

*as distinguished from an initialism: you can pronounce an acronym. “FBI” is an initialism, “NASA” is an acronym. “CIA” is an initialism, and somehow “CSIS” is an acronym. And so on.

April 4, 2021

Soundtrack:

Busty & the Bass, “Eddie“

Volcano!, “Piñata”

Kishi Bashi, “Emigrant EP“

Magnetic Fields, “69 Love Songs“

Categories
Higher Ed Marketing & Communications Theory

One Billion Cows: Mandatory Symbolism and the Audience Divide

A representation of a cow is not a cow. Derrida!

Building on last week’s post about the tension in higher ed marcomms; that of the need to pursue the risk-tolerant needs of marketing while also being the caretaker of a brand, which is generally risk-averse.

Wrapping it up, it struck me that we’re dealing with bidirectional symbolism. On the brand stewardship front, I think this is a fairly straightforward proposition. A university or college’s brand boils down to just a few highly charged representations: a crest, a school name, a set of colours, the name of their sports teams. What people think and feel when they see the crest or hear the name is the essence of brand stewardship.

MarComms and the Journey to Symbol

I want to break down the marketing and communications journey from the thing to the symbol a bit more, however. If you asked me what marketing and communications was all about, I’d say something along the lines of getting the right information to the right people at the right time, in a way that attracts and keeps their attention.

Re-parsing that sentence in the context of symbol generation, though:

getting the right information to the right people at the right time, in a way that attracts and keeps their attention

This applies to pretty much every aspect of the thing, but taking research promotion as a f’rinstance, let’s walk through the path from The Thing Itself to the symbol of the thing.

Let’s talk about cows.

“Meuh” is French for “moo,” because I did the whole Magritte thing up top and… you know, I think I try too hard sometimes.

There are about a billion cows on Earth right now. That’s… that’s a lot of cows. It’s a mind-boggling amount of cows. It’s an abstraction of cows; if I try to think of a number of distinct cows that I can hold in my mind at one moment, I could probably get to 40 or 50 concurrent cows that I can maintain, mentally. A billion cows is a lot more cows than that.

So what happens if you’re promoting the research of somebody who is researching cows?

Before you even get to marketing and communications, you’re forcing the Reality of Cows through a number of abstractions.

Cow Abstractions

Start with one billion cows, and the totality of what those cows represent. Height, weight, feeding habits, milk and meat production, environmental impact, religious and cultural importance, cow subtypes, evolutionary history of cows, ethical considerations around cows and cow farming, cow behaviour and social structures, domestic v. wild cows… there is so much to cows.

But, we’re going to take the vast totality of one billion cows, and push it through the lens of a single field. What area of endeavour is approaching the totality of cows? Anthropology? Engineering? Socioeconomics? Philosophy and ethics?

From there, we’re going to pick an area of focus within that area of endeavour. A researcher looking at the environmental impact of cows’ methane production based on feed type.

It’s an impossibility for a researcher to research all billion cows individually. So we have to have a set of cows that the researcher can reasonably find or gather data on.

Then, we’re confined to the data that is actually collected.

The researcher — subject to the limits of funding, capacity, and the strength of data — will write and present findings that condense the totality of gathered data into some sort of paper or report. This may, or may not, make it into an academic journal.

Crossing the MarComms Line

Assuming something about the paper is noteworthy (and really, all papers are noteworthy, if you look at them hard and can take a creative view of talking about research), a news piece or press release further condenses the research into a short, public- or specialist-facing piece of content that abbreviates the paper into a digestible short read.

The story is, of course, accompanied by a dazzling visual, or short video, which represents a key concept or very high-level points as presented in the research.

But we have to get people to the story, so a social media post that takes the most powerful idea in the story is pushed out onto the fast-paced worlds of Twitter, LinkedIn, Facebook, Instagram, etc. Maybe somebody makes a rad TikTok about cow research!

The key element of the social post isn’t the text — sorry, writers — it’s the image or an even-shorter video that can get somebody to stop scrolling and listen up. This is often a reworked, condensed, or cropped version of the arresting image mentioned above that was developed for the story.

And the above points are forced through their own concurrent lenses of social media best practices — algorithmically, you’re rewarded or punished based on post engagement, so the juggling act is a constant tension (there’s that word again) between trying to maintain loyalty with the upstream complexity, and the need to push out something that’s gonna get hella likes or watch your social platforms collapse.

Good social media presence — which is one of the pillars of responsibility in this role — means using language, images and approaches that drive social media engagement, and doing that without compromising the integrity of what you’re speaking about is an exercise in compromise as much as creativity.

So — through a series of steps — we have reduced one billion cows, and the totality and vastness and complexity of cowness, to an animated cow GIF on TikTok over that “Oh No” audio snippet. Or, in a tortuously tall image (sorry, phone-scrollers):

Each step moves you from the total reality toward symbolism. The tension, obviously, is in finding the symbol that best preserves integrity of the original idea but also functions as an arresting symbol that can engage attention and curiosity.

But each step also invites higher levels of interpretation, and demands more of the audience to move them from symbol to each escalating step of reality, culminating most often in my world with the news piece, and sometimes — ideally — with people checking out the actual research.

This is a good time to shout out my Ryerson English professor, Roberta Imboden (RIP), who largely abdicated most of a Canadian Literature course one semester to talk to us a lot about Jacques Derrida. I still don’t really get Derrida profoundly (sorry, Roberta), but having even a baseline understanding of deconstruction and what it means for work to exist in a dynamic and collaborative relationship with the reader, rather than simply being in a constant “push” state, is maybe one of the most important things I learned in university. Lives of the Saints was also a real good book.

Symbolism isn’t front of mind for me in the daily, but maybe it should be more — the nature of representation, reduction, and the steps of complex compromise that go into knowledge translation. It’s a vital part of the job. I think I might look up some sort of Derrida refresher this week.

March 28, 2021

Soundtrack:

DJ Black Low, “Uwami”

Otzeki, “Now is a Long Time”

Whitehorse, “Modern Love”

Dinah Washington, “Lady Sings the Blues”

Categories
Higher Ed Marketing & Communications Theory

The Tightrope

Tightrope

Something I think about a lot is the fact that higher education marketing exists in a space between two overlapping and seemingly contradictory sets of needs. It’s a tightrope (which is admittedly an overly dramatic image; it’s more like a line on the ground, but that’s no fun to draw). You’re balancing two things: marketing, and brand stewardship, which exist in tension with each other in some important ways.

Thing 1: it’s marketing.

Marketing is inherently disruptive. There are as many ways to describe marketing as there are grains of sand on a beach. One of them is that it’s about making sure the right people know the right things at the right time.

That means you have to get the right people’s attention at the right time.

1a: Content with stopping power

Standing out means doing things that aren’t expected. To break expectations and halt somebody mid-Instagram scroll to force them to take notice.

That’s inherently risky. Because when something is new, it’s different. And when something is different, it requires interpretation. Interpretation means you’re inviting gaps in understanding, and the gaps are where the danger is.

1b: Simplifying the complex

It also means condensing things. I can write 10,000 words about how our school is the best school, in excruciating and accurate detail. I can’t drop that on Facebook and compete with a cute puppy or political outrage for stopping power. What’s the one thing people must know? How do I express it with as much impact as possible?

So you need to condense. Condensing moves you from the thing to a symbol of a thing… and we’re back to interpretation, and the hazard that people won’t interpret things in the spirit you intended them.

Thing 2: it’s brand stewardship.

This is inherently opposite to marketing. You need small-c conservative, hundred-year thinking. Ensure that you’re taking as few risks as possible that may damage your brand in the eye of your stakeholders.

I articulated this a bit in the risk ladder note a few weeks ago. But while the brand ladder shows where risk resides and where it should be tolerated, it doesn’t really capture the fact that the whole ladder lives in dynamic tension from rung to rung.

Brand stewardship overlaps marketing

The obligation to safeguard the brand actually has primacy over the marketing mission. So while the initial Venn diagram has marketing and brand stewardship overlapping, the marketing thought actually more accurately happens inside the brand stewardship circle:

Getting back to the ladder metaphor, brand stewardship tilts the ladder downward, if not lying it down flat. The appetite for risk to achieve the best possible marketing is subsumed by the need for caution in the brand space.

There’s some flex here — imagine the external circle growing and shrinking according to the mandate. A newer institution, without the benefit (and weight) of a lot of venerable history behind it, can take more risks. A new program at a venerable institution is in a middle ground where the program hasn’t accrued an identity that needs to be maintained, but it still exists in that larger context.

So what initially seems like an overlapping Venn diagram is really a contained one. It grows, it shrinks, and in vanishingly rare circumstances the “marketing” circle might eclipse the brand stewardship one.

Interestingly, and something I don’t quite have the brainwidth to unpack right now: both are really about symbols. Marketing reduces complex sets of information to compact communication units, moving them closer and closer to symbolism. Brand stewardship is about ensuring the smallest unit of information: a logo, a name — carries as much power and weight as a symbol possibly can. So one need drives you to symbolism. The other need is about preserving and adding value to an existing symbol. Hmm.

Obviously, this is not impossible to reconcile. It’s actually kind of fun to work through these challenges. This is where having a strategy is key. You need to figure out the marketing who/what/when/how, but you also need to figure in a creative approach that is disruptive inside a larger brand context.

It’s a tightrope, but people walk tightropes. They do it because it’s challenging, and fun. When you pull it off you’re doing something kind of amazing and dazzling the crowd. You get on the tightrope because you want that challenge. And while it’s scary while you’re walking it, it’s profoundly rewarding every time you get to the other side.

March 21, 2021

Soundtrack:

Bell Orchestre, “House Music”

The Kinks: “The Kinks Are the Village Green Preservation Society”

Kruder & Dorfmeister, “The K&D Sessions”