Category: Higher Ed

CASL at 10: Wrap-Up

Post author By mattshepherd
Post date November 28, 2023

Photo by Pixabay, Pexels.com. CCO. Castle on a body of water. — Look, I've avoided making this dumb visual pun 10 times now, give me a break. Photo by Pixabay, via Pexels.com. CC0.

This is part eleven of a multi-part series reviewing Canada’s Anti-Spam Legislation in practice since its introduction in 2014 and the beginnings of enforcement in 2015. Crosslinks will be added as new parts go up.

Part 1: Terminology

Part 2: Parameters

Part 3: Big Numbers

Part 4: Case File – Compu-Finder

Part 5: Case File Anthology, 2015-2016

Part 6: Case File – Blackstone Education

Part 7: Case File Anthology, 2017-2018

Part 8: Case File – Brian Conley/nCrowd

Part 9: Case File Anthology, 2019-2022

Part 10: NOV – Sam Medouini

Part 11: Wrap-Up

Core resources:

The Act

Enforcement Actions Table (CASL selected)

Here it is.

I’ve been taking various runs at a wrap-up of almost 10 years of CASL being on the books, and keep kind of bouncing off this summary. In part because it’s hard for me – as somebody who needs to interpret the regime, but who is also interested in looking at its effects over time – to get a firm grip on how it is implemented and practised based on the last 9-and-a-bit years of enforcement.

I’m going to break this down into a few components:

Useful things to know, that are in the Act but may not jump out at a user;
Specific observations based on notices of violation and CRTC rulings;
A general overview of how I feel about CASL. Spoiler: conflicted.

General rules:

CASL isn’t just for “spam”. Frankly, they should rename it. “Anti-Spam legislation” is a snappy phrase but causes more confusion than is warranted. The conventional understanding of spam is junk email, but this legislation applies to texts, intrusive software (malware), browser extensions… essentially, if it’s delivered digitally, it falls into the remit.

ALL Commercial Electronic Messages (CEMs) are prohibited. By default. Assume any commercial message is not allowed to be sent, and CASL carves out exceptions to the general prohibition.

ANY CEM contaminates a non-CEM. Even if a message is 99% non-commercial, any inclusion of any content that – from the Act:

having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that

(a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;

(b) offers to provide a business, investment or gaming opportunity;

(c) advertises or promotes anything referred to in paragraph (a) or (b); or

(d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so.
The Act, 1(2)

Requests for consent are also CEMs per s1.3 of the Act. This results in a Catch-22 – you can’t market without permission, but asking for permission is marketing. Added value is therefore key – or couching a consent request in an otherwise legitimate communication. I can’t email you out of the blue (except under a certain set of circumstances) asking you to opt into my newsletter, but I can post on LinkedIn telling people I’ve created a free white paper on best practices in Z, and require people to sign up for my newsletter to download that white paper.

Nuance that becomes clearer through decisions:

From Compu-Finder:

You can’t obfuscate the source of emails by generating different “from” identities or sender identities. Swapping out domain names, or who the email appears to be sent from, is immaterial. The owner of the domain(s) is at issue, not the sending domain itself [29-30]
Reported initial decisions are not final. It is always, always worth working with the CRTC, if you are one of the very rare organizations that gets to the point of having an AMP levied (see “CASL is your Old Testament God,” below). Explaining your context, pleading small-company-will-fail, and working with them to put a program in place to prevent future violations seems to be a foolproof way of getting AMPs reduced, sometimes very dramatically.

From Porter Airlines:

Stating the obvious, but this is a little trifecta of consent, contact info, and unsubscribe functionality – all three have to be in place for you to be compliant with CASL. You can’t mix and match.

From Blackstone:

A campaign is a violation, not an individual email. [2]
- There is no conspicuous difference in the scope of campaigns, given Blackstone and later Conley/nCrowd. One send of 100 emails is “as bad” as one send of 10,000 emails on the surface; there’s no pattern evident in the decisions that show scope-based penalties.
You don’t need a price to have a CEM: if you’re offering a service and implying it costs something, that’s enough to pass a threshold of “commercial electronic message” [18]
Somebody simply publishing an email address on the Internet isn’t enough to invite solicitation; if you are pulling addresses to create a list, keep records, as you still have to make a case-by-case justification of how consent is implied. As they say in the Act, ”the onus… rests with the person relying on it.” [25-28]
- As an example – and this is me extrapolating, not the legislation – I am on the Smith Engineering higher ed website as the Director, Marketing and Communications, with my email published. That makes me contactable as somebody you can email if you’re offering a product that impacts marketing and communications in higher education, but you’ll want a spreadsheet somewhere that captures that information as the reason you’re reaching out to me.
- I would argue that the “in higher education” component above is relevant and important, but given the overall pattern of how legislation is enforced (see again below) I think this is in the ‘jaywalking’ category of a distinction without a difference – it’s a fine point that could be argued pushes someone into the “spam” category, but likely too minor to be meaningfully enforced. That said, please don’t spam me.

From Ghassan Halazon:

People can be pursued as individuals, which is detailed in the Act [s 32]. There is no clear line via decisions of when vicarious liability will be imposed; the Act states that explicitly in s 31:
- An officer, director, agent or mandatary of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation is proceeded against.
To date there has been no “double dipping” where a corporation and a leader figure has been found in violation, but that doesn’t mean it will never happen.

From 514-Billets:

The CRTC has been open, at least once, to alternate compensation schemes; rather than cutting a cheque to the Receiver General, 514-BILLETS issued coupons for 75% of the imposed penalty.

From Datablocks/Sunlight Media:

While rarely, s 8.1 of the Act is enforced – it’s not clear on whether the relative scarcity of enforcement is because infractions are more rare, or cases are much, much more complex and harder to investigate and pursue.
To wit, this “malvertising” case seems pretty damning on the evident facts, but poor documentation and an aggressive malware response policy within the Government of Canada made this not pursuable.
This is obviously not an open invitation to do nefarious things with computers, but a user-level caution that if you intend to file reports on malware / intrusion software / etc., be slow and cautious about how you capture information and document it.

From Brian Conley / nCrowd:

Again reading into the tea leaves of how the Act is enforced but it feels like vicarious liability is the recourse when it seems like companies aren’t going to be around long enough to pursue / there’s an evident pattern of MBA-style shell games.
There are large and seemingly arbitrary gaps in penalties without much rationale provided for the differing amounts by the CRTC (see, again, the next section)

From Orcus Technologies:

Vicarious liability [s 32 of the Act] is growing in use over time; either reflecting a greater focus on ephemeral companies, or an evolution in the CRTC’s understanding of what penalties will stick.
There seems to be an awkward marriage between CASL and criminal penalties for cybercrime – CASL itself expressly does not have a criminal component, and the hand-off from the CRTC investigation to the RCMP / OPP seems to only, possibly, be resulting in a criminal process four years on.

From Scott William Brewer:

Again, working with the CRTC seems to have a very high success rate in diminishing penalties – from $75,000 to $7,500 in this case.

The final tally

Who wants spreadsheets? We got spreadsheets.

Wuxtry! Wuxtry! Getcher spreadsheet heah!

When I tabulate all issued penalties from decisions to date, I arrive at $3,163,000. Imposed penalties – admittedly with fuzzy math around coupon redemption rates for the 514-BILLETS issue – come in at $1,185,750.

The differential is $1,977,250 – about 63% of issued penalties wound up not being imposed. We’re also assuming that all imposed penalties were, in fact, paid – in several cases the companies that had imposed penalties then seem to have gone out of business, so the likelihood of the Canadian Government having seen that money is dim.

Chart showing issued versus imposed penalties. Issued penalties are far higher than imposed.

I also can’t account for about $500,000 that CRTC summaries say were imposed; more on that under “CASL as a marketing exercise,” below.

CASL as your Old Testament God

This kept running through my head as I tried to look at decisions and figure out if there was any clear logic to an external user regarding:

Who was investigated and penalized; was there a consistency in terms of numbers of complaints, egregiousness of the action, or public visibility of the offender?
When penalties were imposed, was there a clear line to draw regarding the severity of the penalty compared to the actual actions taken in violation of CASL?

As somebody raised in the church, the more I poked at it the more I felt I understood the terror of the, I don’t know, Hittites: there’s a baseline set of behaviours you’re expected to follow, but it’s impossible to know when the eye of judgment will fall upon you, and when it does, there’s no real way to predict the extent of your punishment.

Blackstone somehow finds its way to a $590,000 reduction in penalty, despite Blackstone’s only engagement as described in the decision being to complain about a deadline, file an appeal to entirely the wrong court, and then not cooperate – the CRTC actually calls them out specifically for this in the final decision [s55].
Conversely, some level of cooperation seems to have given Ghassan Halazon a $10,000 penalty for CEMs sent by Couch Commerce, but Brian Conley – not exactly his partner in crime, but certainly fellow traveller in terms of responsibility and scope – paid 10x as much, at $100,000.

Beyond those examples, it’s hard to know how evenly the law is applied – or even what the specific triggers and determinants of a penalty are. It doesn’t feel entirely random, but since most decisions are posted without the number of campaigns or scope of sends, there’s no way to draw a line from the violation to the penalty in a way that makes sense in terms of whether it’s being evenly applied.

CASL as a marketing exercise

The other thing is that the pattern of CASL actions – from the perspective of somebody that works in marketing – seems to be more about creating the impression of enforcement than consistently and rigorously applied penalties.

The most recent snapshot contained the following now-familiar text:

Payments and Penalties Under CASL

Since CASL came into force in 2014, compliance and enforcement efforts have resulted in administrative monetary penalties and undertakings totalling over $3.6 million.

I can’t account for these numbers: even the $3.6 million is $0.5M higher than a manual tally of NOVs from the CRTC site (I’ve made a spreadsheet).

My own numbers land at $3,163,000 in issued penalties, but only $1,185,750 in imposed penalties – about 37% of the issued penalties wound up being actually imposed.¹

But there’s also a pattern of big shock-and-awe announcements that get quietly walked back after the fact, or that lead to follow-on penalties much smaller than the initial ones:

A national-headline-grabbing $1.1M penalty for Compu-Finder, later reduced to $100,000.
Similarly, significant hay made about Brian Conley being issued an NOV as “vicarious liability”, at $100,000, but then much smaller amounts for a similar breadth of issue by fellow traveller Ghassan Halazon and the completely unrelated William Rapanos.
The “malvertising” case with Datablocks and Sunlight Media, which dropped a $250,000 penalty to nothing, while narrowing the scope of its investigation from the broad issuing of malvertising across the Internet to a lack of proof on specific Government of Canada computers.

A journey through CRTC CASL “Snapshots” show a pattern of reporting actions that weren’t actually taken under CASL – things done by the CRTC as a whole, but as far as I can tell unrelated to CASL or its enforcement.

For instance, in the most recent snapshot, headlines include:

Large-scale Bank Phishing Investigation – a criminal investigation, following reports to CASL
Using social media to warn Canadians – essentially, CRTC posted and retweeted about frauds

In the previous snapshot, the headlines are all about various CRTC activities – a CRTC decision regarding botnet blocking (its development being the sole headline of an earlier snapshot), a report on a Canadian “dark web marketplace” (actually a reference to the previous snapshot, and not new news) and vigilance over malware called QAKBOT.

And so on. I won’t blow-by-blow this, but if you go back through the snapshots, the bulk of reporting isn’t actually about CASL, but other CRTC activities.

This makes perfect sense from a certain perspective. If you’re a parent, or a teacher, or have ever run a volunteer organization, there are times when you have a rule that you can’t practically enforce, and for whatever reason the common good isn’t enough to get people to follow it. Telling people there is a rule, and enforcing it sporadically, but with harsh enough penalties that it scares everyone into compliance, makes a lot of sense.

Starting with the assumption that the CASL team is smart, works hard, and is just not adequately staffed to provide perfect enforcement nationally at all times (which would take a preposterous scaling-up), big penalty announcements with quiet walkbacks, trumpeting non-CASL achievements in a way that makes CASL look vast and vigorous, is a good move. In the day to day, risks of getting caught are relatively low (see below), but when $1M+ penalties are making the headlines, the idea of getting caught in that net is scary.

But is scary enough?

Does CASL work?

Back when I started this analysis, I said my interests were:

establishing whether or not the overall rate of spam is going down
gaining some understanding of the likelihood of a significant action being imposed on an organization

What have we learned?

Is spam going down?

On the first front, the answer is clearly that complaints are not going down.

graph of spam complaints over time, trending up

Arguably there are many reasons for this – including CASL’s own effectiveness in sensitizing the public to spam and fraud, driving reporting numbers up.

But – given the sporadic nature of enforcement, and the amount of fuzziness around what CASL is claiming, both in terms of penalties and its own vs. taking credit for other CRTC activity in its snapshot – I don’t have a great feeling about it.

Maybe it can’t “work”. Maybe the digital world is too big, and too global, and evolving too fast, for us to “beat” online fraud in any meaningful and lasting way, and stemming the tide is the best we can ever hope for. I don’t have the time or resources to really meaningfully compare CASL to other national spam protection regimes, so there aren’t any comparators out there I can easily index against.

It’s possible that looking at CASL through the same lens as other public-service organizations and criteria – is crime going down, as a measure of police effectiveness; wellness and death rates, as a measure of public health effectiveness – is a fool’s errand.

This leaves me with an aggregate shrug. Does CASL work? Shrug. Could it be doing better? For sure. Should we, as a society, allocate the kinds of resources to it that it would take to do better? Shrug.

But if my read of CASL actions, and their own snapshot headlines, is correct and the slow pivot is from enforcement to awareness, and there’s been a general slide from “we can stop this” to “our best chance is to educate the public, focus only on the worst offenders, and rely on private enterprise to develop better detection and protection algorithms,” that’s a big change over the last 10 years that’s never been explicitly acknowledged.

What’s the likelihood of specific action being taken?

Low. Like, real low. The math remains 218,465 complaints per eventual financial penalty. The “lowest” threshold of effort CASL imposes, a notice to produce, still only happens once per 1000 complaints. That’s not a threshold, I’m not saying “nothing happens until you get to 1000 complaints,” that’s just how it averages out.

But, as detailed in the “Old Testament” section above, also horrifyingly arbitrary.

I am not a lawyer and this is not legal advice, but if I were to get one takeaway from all of this, it’s really a two-part maxim:

Don’t be a jerk, and
Do your best.

If I step back and squint and try to make sense of this decade of decisions, the pattern that seems to come through the fog is that getting CASL to focus on you is rare, and best-effort attempts to follow the rules seem to buy a lot of, if not absolute, forgiveness.

CASL decisions tend to land on unequivocal wrongs. There’s not a lot of stuff in the archives that suggests that they penalize innocent mistakes, or even grey-area decisions. There’s never been a decision that has come down on a public service organization, charity, or non-profit. Not to say there won’t ever be, but the focus seems to be on parties that are clearly doing wrong, should have known better, and did scammy, spammy things anyway.

Don’t break the law! Never break the law!

In principle, CASL is a good thing. It’s reasonably clear. We would all live in a better world if everyone followed these rules. So we should.

But… if you make an inadvertent mistake, or you look back at a campaign and say “oh, we should have done X,” or “I don’t know if we were in full compliance with Y,” I wouldn’t let it ruin your lunch. Learn, pull up your socks, and do better on the next one.

With text-based phishing and malware and online casinos and a whole planet of scammers, the top-of-mind analogy is the city’s on fire and there are riots in the streets. Jaywalking is still wrong, but if you forget to check the traffic lights at 2 a.m., you’re not the kind of problem the CRTC is looking for.

Wow, this went long

I didn’t mean for this to hit 3,000 words! I’ll stop here.

Next up, stepping a bit outside the review mandate, but bringing it back to my own interests: poking at whether or not students and academic institutions can be considered to be in a “business relationship,” which has a heavy impact on CASL but a lot of other things too. This might take a while. Expect more quick observations on IP, privacy and marketing in the interim while I chip away.

1
The imposed penalties number does include a bit of my own math, as the 514-BILLETS case resulted in the issuing of $75,000 worth of rebates, which I calculated at far less than that value in terms of what the ultimate cost to the company would have been.

CASL Consent Higher Ed Law Marketing & Communications Privacy

CASL at 10 – Terminology

Post author By mattshepherd
Post date May 2, 2023

This is part one of a multi-part series reviewing Canada’s Anti-Spam Legislation in practice since its introduction in 2014 and the beginnings of full enforcement in 2017. Crosslinks will be added as new parts go up.

Part 1: Terminology

Part 2: Parameters

Part 3: Big Numbers

Part 4: Case File – Compu-Finder

Part 5: Case File Anthology, 2015-2016

Part 6: Case File – Blackstone Education

Part 7: Case File Anthology, 2017-2018

Part 8: Case File – Brian Conley/nCrowd

Part 9: Case File Anthology, 2019-2022

Part 10: NOV – Sam Medouini

Part 11: Wrap-Up

Core resources:

The Act

Enforcement Actions Table (CASL selected)

CASL has been a subject of professional and personal interest to me for some time. I began working in higher ed marketing at around the same time as the legislation was introduced, and well in the groove when it came into full force. It made pretty much everyone in marketing — whether they were in for-profit, not-for-profit or charitable work — pretty anxious.

Almost 10 years later, it feels like a good time to see how it’s all playing out. I’ve been working on this at a fairly relaxed pace, so it’s conceivable that I might wrap this up for its 10th anniversary at this point.

Even as somebody who was passingly familiar with CASL for professional reasons going into this, I rapidly ran into a pretty fair-sized lexicon of terms and acronyms. Before we get into the meat of it, let’s get some acronyms and terms out of the way.

CRTC: The Canadian Radio-television and Telecommunications Commission. Responsible for broadcasting, Internet, and telephony in Canada. Very eager to point out that they “operate at arm’s length from the federal government” – it’s practically the tag line for the whole organization on their home page.¹

CASL: Canada’s Anti-Spam Legislation. The subject of these short essays. It was introduced in 2014, with a “transitional period” to July 1, 2017, when it came into full force.

CEM: Commercial electronic messages. Pretty much any electronic message (text, email) that promotes a product or service, with some clearly defined exceptions. We’ll unpack this more in the next post.

Investigative powers: Commission staff, who are persons designated by the Commission to conduct investigations, may use the following powers to investigate possible violations under CASL. These presumably lead to actions (see below).

Notice to Produce (NTP) – a notice served on a person requiring them to produce data, information or documents in their possession or control (additional information is available in section 17 of CASL);
Preservation Demand – a demand served on a telecommunications service provider requiring it to preserve transmission data in that is in or comes into its possession or control (additional information is available in section 15 of CASL); and
Search Warrant – a judicially pre-authorized warrant that authorizes designated persons to enter a place (business or dwelling-house) to examine, copy or remove documents or things (additional information is available in section 19 of CASL). ²

Action types: measures that CASL / the CRTC uses to reinforce compliance with CASL (as well as Unsolicited Telecommunications Rules (UTR) and the Voter Contract Registry (VTR)). Particularly pertinent for CASL:

Citation: a letter outlining alleged violations and an “opportunity to clarify”. Other than publishing the citation 30 days after issuance (absent a valid defence), there don’t seem to be any follow-on penalties to a citation. There’s only been one citation in CASL history to date (Orange Link Inc., details not available online).
Notice of Violation: sets out alleged violations, and may include an AMP (see below).
Compliance and Enforcement Decision (“Decision”): official decisions following the review of a Notice of Violation, Notice to Produce or Preservation Demand.
Undertaking: an agreement between a violating entity and Commission staff defining compliance obligations; can also include a payment amount.
AMP: Administrative Monetary Penalty. These are part of a Notice of Violation; a civil penalty imposed by a regulator. They can be appealed to the commission – this gets important later.

In the next post, we’ll start looking more at the early days of CASL, its remit governing Commercial Electronic Messages (CEMs), and what exactly CASL is, and is not, meant to enforce. It wasn’t quite what I always assumed it was; this might be true for you as well.

1
I can’t find any other federal commissions that do this. The Canadian Nuclear Safety Commission doesn’t do it, the Human Rights Commission doesn’t do it, the National Capital Commission doesn’t do it, the Truth and Reconciliation Commission didn’t do it… I could go on. I don’t want to sound conspiratorial out of the gate, but given how many criticisms the CRTC has seen for being connected to big telco companies, it’s interesting that the first words out of their virtual mouths are “we aren’t the government, guys!”
2
Verbatim from the CASL FAQ at https://crtc.gc.ca/eng/com500/faq500.htm/

Higher Ed Law Marketing & Communications Photography Privacy

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

Post author By mattshepherd
Post date July 7, 2021

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. ¹ 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.²

Success is less assured here. Working through a set of factors defined by Amy Conroy of the University of Ottawa in 2012³, 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 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.

1
See 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
2
It’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.
3
Amy Conroy, “Protecting Your Personality Rights in Canada: A Matter of Property or Privacy?”, Western Journal of Legal Studies, Vol. 1 Issue 1
4
“File a complaint about a business,” Office of the Privacy Commissioner of Canada

Consent Higher Ed Law LLM Marketing & Communications Photography Privacy Videography

Warren & Brandeis: Photography in Privacy’s DNA

Post author By mattshepherd
Post date May 16, 2021

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.¹ 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 antecedents²) — WAB even mention that it had “already found expression in the law of France”³ — 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.⁴ 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…”⁵

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!).⁶

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/

Consent Higher Ed Law LLM Photography Privacy Videography

Set Sail: for Law Island!

Post author By mattshepherd
Post date May 9, 2021

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

Higher Ed Marketing & Communications Theory

One Billion Cows: Mandatory Symbolism and the Audience Divide

Post author By mattshepherd
Post date March 28, 2021

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”

Higher Ed Marketing & Communications Theory

The Tightrope

Post author By mattshepherd
Post date March 21, 2021

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”

Higher Ed Marketing & Communications Theory

Looking Up the Risk Ladder

Post author By mattshepherd
Post date February 28, 2021

Risk management is a tricky business. Heck, risk is a tricky business — I bought and read a book on the subject a few years ago (The Science of Fear, but titled Risk when I bought it).

It was an eye-opener — a lot of things I’d intuited but never really understood laid out plain, with the general takeaway that as story-driven people, we perceive risk on a very different level than risk exists at.

It’s important, initially, to understand that there’s a massive tension at the heart of marketing for any great institution.

Marketing is by its nature disruptive. It’s meant to get and hold attention, and doing things in exactly the expected way, as safely as possible, is not a good way of doing that. You capture attention through innovative and different ways of doing things.

Innovation, and difference — are risky.

This makes marketing and communications in higher ed a perpetual engine of contradiction: you succeed by being innovative and disruptive, but are beholden to steward a brand and story that can be hundreds of years old, with stakeholders spanning older alumni, major donors, government, the worlds of science and the arts, the local community, prospective students, current students… and more besides.

In higher ed, I’ve been coming to realize that part of the risk aversion is due to the breadth of the stakeholder base, and also that marketing and communications means a lot in this context.

It’s a very broad idea that gathers a lot of types of thinking, and they sometimes get bundled as a single understanding of risk — and consequent processes — than separated out into constituent parts with their own risk profile.

I’m thinking about that, and thinking about ladders.

Ladders are risky; the higher you climb, the worse you can fall.

But the higher you climb, the more you’re laddering. You can reach more, see further… every rung up the ladder makes it more ladder and less… tiptoes or stepstool.

What if we were to look at the range of activity like a ladder? Some things mean climbing higher and chancing more to do them well. Others — stay close to the ground.

If you are looking for poor font choices on bad drawings of ladders, friend, you have *come to the right place*

Advertising
Story promotion
Research promotion
Brand management
Storytelling
Awards / events
Internal announcements
Government/Industry relations
Crisis communications

The funny thing about the ladder is that I keep trying to conflate activity types with channel types, to the point that I think there’s a whole separate question here to look at: must certain channels be riskier than others? It feels like social media has to be more daring to cut through the noise / clutter / amazingly entertaining things out there, while web-based or print journalism can be a bit more stoic.

I’ve carved it up as story promotion and storytelling above, which at a glance might seem incoherent. But I think there’s a less-risky, more-staid “story” on the site, or in print, but what drives eyes to that story — on social media, or elsewhere — needs to be a bit more marketing-ish to succeed.

This is a bit of a bolt from the blue moment for me, as I realize I’ve actually settled into a pretty static view of storytelling myself; I’ve been thinking of the full-story-to-social-media spectrum as a continuity of the same thing, not that the social media component is actually advertising for the story it’s sharing… it’s a subtle difference, but it feels profound the more I think about it.

There’s also an audience ladder that I think lives next to the activity ladders, organized roughly and unscientifically according to how much moxie I think goes into reaching them across the board:

Prospective undergrads
Prospective grad students
Prospective faculty
Alumni
General public
Internal audiences
Government
The Concerned

Prospective undergrad students? How are you going to tell them you have the best theatre program in the country in a way that competes with Twitch livestreams and TikTok?

And so on down the chain, in frankly a slightly ageist way (sorry); alumni squarely in the middle because they encompass such a broad range of ages and interests; The Concerned being that specific set of people that are agitated about a very specific issue that crisis communications needs to manage. They may be all over the map demographically, but the crisis at hand is not the right time to get innovative in how you’re addressing it.

The central point being — I think risk is ill-understood everywhere, but there’s a conflated sense of risk in higher ed, and people outside the marcomms sphere will assume that when you’re stewarding a mighty, generations-old brand, the risk aversion mentality of the lower rungs of the ladder should be applied to everything.

Which is — well, safe, which is I guess the point, but it means you never get to climb.

One tactic I’ve used to have risk conversations in the past is a causal chain approach: acknowledging that there’s a level of risk in what you’re doing, but asking the other party to unpack with you where the risk actually resides. Is there a high probability of a negative outcome, or is a negative outcome the result of a series of increasingly improbable events?

What’s the negative outcome they’re worried about… and, step by step, how does one arrive there? Sometimes there’s a probable risk — and change is needed — but sometimes you find that the path to the actual problem is so long, and so unlikely, that the benefit of a more readable piece, or more functional marketing, is worth accepting a very slight chance of a bad outcome.

It comes up when people conflate audiences — what if somebody on a lower rung sees something intended for an audience on a higher rung? It’s a legitimate concern, but in an increasingly crowded media world, are we evaluating that risk effectively and well? And what benefits are we losing by gearing higher-rung needs down to lower rungs?

An understanding of the ladder, though — that different things, for different audiences, may ask us to look at risk differently — that feels like a narrative I should try to advance in my conversations.

Getting back to the ladder metaphor, there’s a lot left there to unpack as well. There are safe and unsafe ways to use a ladder (I am, in the context of my organization, a certified ladder user, I have taken a specific ladder safety course and am now allowed to use ladders). There’s how you situate the ladder, what you lean it against, what it’s resting on… man, you can just ladder-metaphor all day. But I’m happy with the height/view/fall element for now.

February 28, 2021

Soundtrack:

Various Artists; “Put On Your Best Dress: Sonia Pottinger’s Ska & Rock Steady 1966-67”
Various Artists; “Different Fashion: High Note Dancehall Collection”

Higher Ed Theory

The Right Sandwich: Internal Comms in Practice (almost)

Post author By mattshepherd
Post date February 21, 2021

I’ve spent the last month thinking about internal communications a lot…

…starting with the problem as I see it, poking at how putting internal messages on external challenges isn’t a great solution, making a case for how it adds value across the board, and here we are at the “how”.

I don’t think there is a single “how.” Saying there’s a right way to do it is like saying there’s only one kind of sandwich. There are all kinds of sandwiches for different times and different purposes, from crust-off PB&J to triangle-cut church-basement egg salad to six-foot party hoagies.

Why a hoagie? Because hoagies are fun to draw, and say. My wife calls them “Dagwoods,” which is also fun to say!

I like sandwiches as a metaphor: they’re a delivery system for content, but the method of conveyance is also vital. The bread is part of the package and part of the experience. Jamming tuna salad into a wrap is very different than putting it in between two slices of toasted rye; in the same way, a photo essay on Instagram is a different experience than the same set of photos in an email. The sandwich is the message! It’s Marshall McLuhan, but tasty.

I’ve gotten a lot of interesting and useful feedback since I started this; email, messages from colleagues on various platforms, LinkedIn comments — and it’s clear that there’s an appetite for this, and a general understanding of the value and need. Interesting questions like “are students an ‘internal’ audience in higher ed, or ‘clients’?” Also a lot of compassion for the people who need to be communicated with — students, staff, faculty.

As somebody who wants to spend time in this space, figuring it out at the faculty (academic unit, not professors) level and in a way that coheres with both broader (university) and narrower (department/school) plans, I’ve been using the last month to try to get some principles to cohere. These are truths for me, and not universal ideas.

For reasons detailed below, I wind up leaning in a certain direction for channel, format and content… but my answer may not be your answer.

I’m also focusing on students — the largest audience, and also the one with the widest array of frequently conflicting needs. But I think it all adapts/scales to other audiences as well.

Every single thing below is contentious. If I’d been smarter about this, I could have gotten months of content by breaking out each item in a bit more detail for a zillion short entries instead of this marathon.

Sidebar: It’s hard to know what’s true about Generation Z audiences.

The fun thing about investigating marketing is that the people who tell you what channels to use are usually marketers. So I can easily find data that proves Gen Z is gaga for email… from a company that provides email marketing services. Gen Z mainly just watches videos… says a company that captions videos. And so on.

The bread: what conveys your content?

It can’t be social media.

This is pretty obvious for me — social media can enhance a communications strategy, but it can’t be the communications strategy for internal audiences. First, there are equity issues: you can’t force a student to be part of a third-party, for-profit system with privacy and security practices you don’t control. It’s a minefield ethically, and from a security/privacy standpoint. Second, there’s that internal/external divide again. Can you set up channels specifically for internal audiences on social? Sure! It’s done often, and effectively: there’s no reason the campus’ physical plant team can’t set up a Twitter account to broadcast where they’re at with ploughing after heavy snowfalls, or the wellness team can’t try to spread positivity on Instagram. But outside of narrowcasting, I have a hard time seeing myself counseling, say, our faculty setting up a parallel set of social feeds for our internal audiences without the chance of mass confusion with our external channels.

Also: social media is work. It can look fun, and tends to get discounted as a zero-work bolt-on in plans, but it takes time and care to write content and craft graphics — to increasingly distinctive specs — for the four or five “must-have” channels to bat the circuit.

Being in-flow is the challenge…

Social media has a lot of momentum on its side. It’s where people are already, and it’s much easier to push something into somebody’s flow where they are than to try to pull them into taking an action they normally wouldn’t. Our student society is hugely successful at reaching our current students on social — far more than the faculty’s social channels — because they have a single, clear, isolate purpose for social media: to communicate with current students. So not being on social feels like we’re missing a step, and not fishing where the fish are.

…but being on social doesn’t mean being in-flow.

That said, social media presence doesn’t ensure social media attention. Just cutting and pasting a paragraph and tossing it into Insta with a stock photo of a duck won’t get you seen / liked / etc. And, see above, social media is work. And not just one-off effort. If you’re not maintaining a constant presence with high engagement, the key channels will disfavour you algorithmically, putting you into a “death spiral” where you’re being delivered to fewer people, which means less chance of engagement, which means you get delivered to even fewer people…

I’m not saying social media as part of an internal comms strategy is a bad idea — but it’s not a light idea, and it can’t (for equity reasons) be your sole method. You can lean in and do it well, consistently, and with commitment, committing a lot of capacity and effort. But it’s a serious investment, for specific services. I don’t think it’s a mass-comms tool.

I like apps, but not as a sole delivery vehicle.

Our faculty has a great bespoke app for our students. I really like it — and I’ve invested time and effort in driving attention and use. I’m all in on making it work — but it’s been a challenge, to date, to get the kind of mass adoption we’d like to see in the faculty.

This is partly a flow issue — the app is, at the end of the day, an out-of-flow push proposition. We’re asking students to open an app of their own volition, in competition with everything else they could be doing on their phone in that moment.

Its killer function is — for me — the fact that it ties into our learning platform, so once you’re logged in, the home screen shows your class schedule and assignments for the day. This is where I think we could reach flow with our students — it’s more intuitive and navigable than the mobile view of the learning software’s web presence. So there’s a possible future where it becomes the natural place for our students to go periodically through the day to check in — and while they’re there, see announcements, chat in various discussion groups, and use other offerings like the ability to communicate directly with course advisors, the student services team, etc.

While we’ve put some time and effort into it, I think it will take a concerted commitment of money/capacity/brainpower to really surge use, and push us past that 50% critical mass of students where we can truly see a step change in adoption and use. It’s not capacity we have at the moment — but the summer is coming.

The above all applies to “portal” sites as well — essentially, offering the same consolidation service as an app, but over time training people to skip directly to the content they need instead of truly engaging with the collateral you’re scattering on other places on the page.

There’s also an equity issue I have some issues with here: not all students have modern phones, and not all students will have top-notch service with loads of data to play with.

Ultimately, I think it’s email.

I know, I know. Boo! Email! Nobody likes email. Very few people wake up in the morning aching to check the email. But… everybody checks their email anyway. It’s the closest thing to a dependable in-flow tool that we have; it’s effectively mandatory, completely controllable, and segments amazingly.

It also doesn’t have to be a slog. If you commit to it, you can create email content that’s essential, enjoyable and compelling. That’s — again — work. But it’s not out of the question.

And I think it’s newsletters.

Boo again! But having lived in newsletter systems and non-newsletter systems, I think your odds of being read are about equal either way, and newsletters have the following benefits:

It makes content wrangling systemizable: the person running this system can set up processes for sending content in, and managing content on deadlines.
It removes the Darwinian aspect of more attention going to the better e-mail senders
It institutes flow control and diminishes overall email volume
It can provide a consistency and reliability in format and expectations
If it is your ‘essential’ channel, readership will stabilize over time
You can create and manage expectations around newsletters. “You will get one of these a week and you’re expected to read it” is a simple message, and easier to absorb/digest than “we’re going to be sending dozens of emails a week on various subjects at various times, and also posting in other places, so watch out.”

But I never read newsletters!

“_____ sends newsletters, and I never read them” does come up a lot. I hear that. I am also a newsletter-deleter. But I am also a newsletter reader, when I know that the newsletter contains information that’s pertinent, time-sensitive, and appealing.

I also think it’s online.

Note that I’m saying online, not web. I’m a quiet advocate of getting inside-baseball material off websites and onto well maintained internal systems (unless there’s a clear external marketing purpose to the material, but even then, I’d argue for adapting rather than repeating…).

Essential dates and deadlines
Policies, processes, and forms
Archives of prior newsletters
Ultimately, most of your stuff (see “Content/COPE” below)

I’m a big fan of portal-type pages: put things where it makes sense, then have a consolidated index where things are organized and graphically easy to find and get to. A topic for another time.

Event calendars are hard to build and hard to evaluate.

They feel essential in theory. There’s so much to organize it’s so hard to get a view of everything in one place! Surely a calendar…

But a good calendar is a bearcat. You need something that allows multiple parties to enter information, categorization, a way of managing multi-day events as well as short-duration events, and ideally a way of exporting feeds that can repopulate specific calendars in specific places (see “Content/COPE” below, again).

And then you have to get people to use it. Or not? I’d argue that a contemporary calendar is more of a repository than a destination. It’s a place to put your events, but trying to get people to spontaneously drop by an events calendar on a regular basis isn’t going to get a lot of traction.

Again, a topic that deserves more time, in time.

The Stuff: what goes in the bread?

Look, I spent like 45 minutes drawing a sandwich, so I’m going to get as much use out of this sandwich drawing as I can.

This is a needs-based exercise, not a branding exercise

We’re squarely in the communications camp here. I think this is an area where brand and values can sing, but as a background context that drips — it’s ultimately about serving an audience. Start with them: poll/focus group your students and ask them what they need. Keep an open line with your boots-on-the-ground, student-facing staff: where are the current points of confusion and stresses? What can you help with now?

Ask the people what they want is a good start, beginning with your target audience but also the people they serve most often. If somebody is getting a dozen calls a week asking them to explain ____, this is a good sign that some communication needs to happen on that point.

Brand infuses all of this, but doesn’t outshine it. Graphics, text, all of it can lean into an overall harmony of message and conveying in institutional mission and purpose (and should), but the information comes first, and the infusion afterwards.

You need a permanent home base for vital content.

Email is where I lean as a vehicle, but email is also ephemeral. The vital information needs a home online: bookmarkable, 24/7 references to key dates and deadlines, administrative policies, etc. But also for your past emails — even just exporting to PDF and maintaining an archive list — and…well, everything, as we get into below. Portals, and finding not-your-main-website places to store information, is a long-term must.

Nobody sees anything that isn’t meant for them.

If there’s one cardinal rule in all of this: don’t waste people’s time and attention. That’s one of the reasons I’m fond of email — it segments beautifully. You can send email to all students, or just upper-years, or all staff, or only faculty, or just early-career faculty… if you’re willing to put the time in, you can create a dizzying array of segments to make sure the essentials are being shared.

Theory again collides with work here — these lists have to be conceived, created, and also maintained. This is effort, and while it’s easy to envision a coat-of-a-thousand-colours approach where you have newsletters for every segment imaginable, the practical component of making and maintaining those lists — to say nothing of curating the content for each — is nothing to sneeze at. And updating it is a double bearcat.

There’s a sweet spot where things are targetable without being too burdensome to maintain, though. The more people feel like you’re delivering material that matters to them, the more attention you’ll hold and retain.

Balancing the essential and the ephemeral

There’s a natural and eternal tension here; the age-old battle of the urgent vs. the important. Students should know when their application to graduate is due, but should that be a top item for two months leading up to the application due date?

Or should a late-developing talk happening tomorrow be the vital information, and the essential information have its own “key reminders” section further down?

There’s no easy answer here — see below — but my tendency is to put the fast-expiring items close to the top, and the long-term reminders further down.

Everyone’s stuff is important to them.

This is the toughest pill to ask people to swallow — nobody thinks their thing is unimportant, so asking them to put their thing into a pool with all the other things is galling. The corollary, though, is that everyone shouting at increasing volumes, constantly, is not tenable either. So organizing things into a set approach — stable, coherent — is the most community-minded way to go about this.

I think there’s a huge ancillary benefit here: de-siloing and contextualizing units that might normally be charging ahead with an exclusive focus on their KPIs.

COPE is dope.

Create once, publish everywhere. It’s a key philosophy in web design and management, and the central case for an email/web strategy: if content has an authoritative, editable home, it can be maintained in one place and reflected in others. This leads to the big content idea for newsletters…

Index and point…

On the COPE front: everything should have a home that isn’t an email. You don’t need all six points for a student to follow for their application to graduate — just that your application to graduate is due _____, and to follow the process here: ______.

This, for pretty much everything: events to an events calendar, funding and scholarship announcements to a list of them and their criteria, and so on.

…while being engaging and entertaining.

This seems like an impossible balance, until you bring framing into the picture. Not extravagant, elaborate mechanisms, but a lead-in graphic and paragraph. Peppering a few contests or swag giveaways throughout the thing. I ran a “Pets Of…” series, with student-submitted photos, in a prior newsletter for ages, with an amazing uptick in use.

You need a sandwich artist.

Jumping back a couple weeks, and a bit further up here: the work gets shortchanged and will always get shortchanged. “It’s just a newsletter” will be the default position of… well, everybody. The natural pull will be to put top talent on outward-facing things; the graphic designer and the writer and etc. will be back on the Viewbook and campaigns and this will just become somebody’s side-desk job. Fight this. It’s harder to make routine things interesting than it is to make… interesting things interesting.

Investing in something that sings, initially, will go a long way to helping encourage an institutional commitment to the resource. The people with the knowledge may not be the people best suited to craft the content in a compelling way (nor should they be expected to be! Different people are good at different things). Those resources need to be there, and reliably.

What do I need to know now > what must I know in general > other information

We get down to “what’s essential right now” pretty quickly. This is why processes should begin with the audience themselves and the front-line staff: they know what’s critical, where there’s urgency and confusion, and how to rectify it. What problem am I solving? is a good question for construction every week, or at whatever interval you’re releasing.

Remember that most people won’t see your pictures.

Most mail clients now do not load images by default, which means you can either come up with text that lives without visual support (recommended), or find slightly cheaty ways to try to encourage people to load the images (see the “Pets” idea above).

The ol’ retail switcheroo

Periodically, when I go into Peak Capitalism Paradise to buy a 40-lb. tub of mayo, I notice that stuff’s been moved. I’m forced to change aisles, look in different places for things, and break the mental conditioning that drives me to exactly the same spots every time I visit. This doesn’t turn me off to the point that I stop going — but it shakes me out of patterns and makes me notice things I haven’t noticed before.

So I’m intrigued by the idea of periodic format swaps — now events are at the top, but soon it’s key reminders, then student club notices — but not having tried it, I’m not sure what the result would be. It’s a way of breaking the “skim to X” pattern issue, though.

And we have only just begun to sandwich

Believe it or not, I think the above represents… maybe a quarter of what I have rattling around in my head about internal comms channels and content. But I’m clocking 1500+ words at this point, and I think the best I can do — preserving my own sanity, and at least part of my Sunday — is to park it here for now.

January 14 and January 21, 2021

Soundtrack:

Echo and the Bunnymen, “Echo and the Bunnymen”
F*ck Buttons, “Tarot Sport“
Blanck Mass, “Dumb Flesh“
Ex Hex, “Rips”
Various Artists, “Super Somali Sounds from the Gulf of Tadjoura”
The Hold Steady, “Separation Sunday“

Higher Ed Marketing & Communications Theory

Roll That Boulder: Making the Case for Internal Communications

Post author By mattshepherd
Post date February 7, 2021

And we roll into the third part of four thoughts on internal comms in higher ed.*

This is a four-part series on internal comms in higher ed:

Part One is about the hugeness of the issue;
Part Two is about the hazards of conflating channels;
Part Three, here, makes a case for resourcing this;
Part Four is a sandwich-themed run at a solution.

I guess it’s pretty obvious at this point that I think internal communications is a big deal. I think it’s undervalued and under-recognized. It’s a behemoth of a challenge. It’s a boulder that you have to roll up the hill, and like Sisyphus, you gotta keep rolling it.

I’m also in the awkward position at this moment about writing about something I’m currently working on, and haven’t actually done to my own satisfaction yet. I’ve had the boulder slide down on me a few times, and am slapping chalk on my hands for the next attempt.

And — man, this is a lot of qualifiers, sorry — I’ve got a faculty lens on this. That’s where I’m at. I think the below ideas scale both up and down, but want to be clear about my context.

It’s hard to make a case for it.

And without asserting the need, you’re not gonna. External, measurable drivers — recruitment numbers, fundraising numbers, reputation drivers, rankings — are all happening in the context of a constantly changing landscape, so you have to reinvent those wheels every year, on tight deadlines, in an increasingly complex media landscape. There are also other institutional needs, like a long overdue drive toward meaningful equity in higher ed, that are priorities.

The churn of the job — news reporting, social campaigns, design and video-making — grows to fit whatever space it’s in. There’s no end to recruitment tactics, fundraising needs or research promotion; if capacity increases, there are always more to do.

Internal comms, though — barring a tangible and recognized crisis, this subject doesn’t generate urgency the way the external drivers do.

Internal communications resourcing competes with other priorities.

At some point, somebody’s gotta count the beans. The beans should be counted. We’re stewards of public funds, and accountability’s important. But when the number of beans are limited, and there are no more beans to be found, every piece of new work has to be seen not just as an opportunity, but presenting an opportunity cost. Allocating to one thing means not allocating to another thing.

Can you honestly make a case that buttressing internal communications is more important than recruitment? Than research promotion? Than fundraising?

Because that’s the lens that other people will take. It’s a valid lens!

There isn’t a one-size-fits-all solution to this. It’s a matter of looking at other recognized priorities, and seeing how internal comms — as a tier of communications — supports your overall objectives.

It’s not one tool to solve one problem.

I have made this mistake myself. I’m not casting aspersions except on my past self here. But prior attempts at internal comms strategies have been instigated because of a specific problem. So I approached internal communications as a specific way to solve Problem A.

This made the resource allocation part easy — I was handed a problem to solve, and came up with a solution — but ultimately, it was narrow, and while it did the one thing (reduced overall email traffic to students), I think framing it in that narrow way was reductive and ultimately harmful.

People didn’t come out of it seeing benefit other than the immediate solution to the problem, and subsequently, expanding and improving meant going back to square one — even square minus-one, because now there’s a kind of “didn’t we already do that?” mentality that makes it harder to scrap for resources.

It’s not an emergency address system.

Similar to the above — I hesitate to present these things as an emergency-service kind of approach. I’m not manning the ramparts for the death of listservs and email, but I think there’s an argument that something that consolidates and organizes internal messages actually improves the institution’s power to communicate urgently — because it’s now an exception, not the rule.

Brand starts in-house.

If you’re going to take a holistic approach to this, you need to start with a Big Idea. That’s my Big Idea. Feel free to borrow it!

My business case for internal comms begins with that simple statement that plays out across a number of areas. It’s also a jazzy l’il slogan that gets people excited about internal comms, which helps!

From there, I want to come up with some arguments that support the “brand starts in-house” premise, or come up with other positioning of internal communications as essential to the general priority areas: recruitment, giving, equity, research, reputation/rankings.

Broad/institutional:

Having staff, students and faculty aligned on an institutional vision and mandate makes achieving that mandate far easier.

Your school, and possibly your faculty and department, have their own strategic plan and vision for the future. But how do you radiate those values internally? When something has to be done to support Objective A, your chance of that being well understood and well received improves exponentially if people know what Objective A is in the first place.

One of the early lessons I learned in marketing is that sometimes, if you want people to know something, just tell them. If your store is having a sale on mittens, a very large sign in the window that says “MITTEN SALE” is sometimes exactly what you need.

But you need a vehicle to tell people, consistently, directly and indirectly, what the vision is.

Recruitment:

Canada is not that big a country at the end of the day. And people talk. A happy, engaged student body is your greatest recruitment tool — even the best messaging in the world, packaged in the most gorgeous viewbook, hosted on the most elegant website, will only get you so far. At some point, somebody’s going to know several somebodies, and if the universal feeling from current students is dissatisfaction, that’s going to make an impact.

I’m not advocating wallpapering — this isn’t about Mandatory Cheer, and it’s all fruitless if the right infrastructure and tools aren’t in place to address the root causes of satisfaction — but internal communications should be viewed as part of that infrastructure, not an externality applied after the fact.

Alumni giving:

Student happiness and alumni giving correlate. So, I mean, see above / ‘nuff said.

Staff efficiency:

I can’t tell you how many times I’ve been talking to Person A and in the course of the conversation discovered they’re doing something astonishingly similar to Person X, and if the two of them had just known they’d have saved probably a few days of work by letting one person do the heavy lifting and hand off to the other to adapt at the end of the day.

Even knowing who’s good at what is immeasurably helpful. Over time, I’ve cultivated a sense of expertise among my peers on campus — if I need some advice, I know I can reach out to somebody and say “how would you do ____?” and get some good guidance. That starts with knowing what people do — and are good at. How much more will you get out of people with, say, casual web duties if they have seen a colleague recently praised for some good work in that space, and can expand their resource pool for simple questions?

Staff morale:

One of my early asks when I was at the law faculty was from a faculty member who asked if I, in my then newly minted role, could make a priority of telling people what other people do. He could walk down a hall past a number of offices and see people in them doing things, but had no idea what their jobs were or why they were important.

It’s not great to work in a place where you fundamentally don’t feel like you know what’s going on. Very few people need granular knowledge of what the exam administrator is doing to resolve a problem with remote proctoring in the moment. But knowing that there is an exam administrator, and what the functions of that role are? Super cool.

And — how much worse is it to work in a place where you suspect nobody knows or values what you do? I got sad just typing that! How do you recognize people whose jobs don’t put them in the spotlight — and show how they’re vital contributors to the overall mission?

Priority smoothing:

Still on the ‘“making people aware of what other people are doing” front: unit cross-talk leads to priority smoothing. Silloed units charging forward toward their own KPIs are productive, but without a view of what’s happening in other units, can’t self-modulate to provide room for other units with other needs. The beans are finite, and giving people the opportunity to self-throttle via greater institutional awareness relieves a lot of pressure from the people who would otherwise have to have resourcing conversations with them.

Research motivation and collaboration:

Well-informed researchers that are aware of what their colleagues are doing and excited for institutional success are motivated to succeed — and internal collaboration starts with a general awareness of what’s happening across the institution.

Equity:

Equity touches every aspect of the university experience, from recruitment that strives toward representation across students, staff and faculty; to alumni engagement; to pervasive impacts on research. The emphasis often tends to be to get people in, but making sure they’re supported and seen once they are at the institution is just as important.

On the flip side, if you’re bringing in several thousand students a year, and have thousands of staff and faculty working with them, you can’t expect them to all be in the same place at the same time on understanding EDII and its importance. How are we continually radiating a culture of equity to people who might be less aware of these issues?

Content generation:

Just the act of doing the work generates outward-facing content. When people see each other and feel aligned toward a common vision and set of goals, ideas spark. Somebody has an idea for an internal newsletter that’s actually the first step toward a major insight for the whole institution. Internal comms content starts to drive ideas for external communication.

It also sparks the kind of spontaneous, organic, genuine social media presence that you literally cannot pay for or fake.

Rankings and reputation:

Having tucked into this a bit over the last six months, I’m told by much smarter people working harder in these areas that a lot of these things are driven by both internal-satisfaction surveys, but also research across the board about top-of-mind presence at other institutions. It’s an unproveable, but I can’t help but think, in a confined sector in a country that’s not that big, internal alignment and vision radiates. Can I prove that a faculty member at one university will be influenced to name another university as a top-of-mind top research institute because their colleagues there seem motivated and collaborative? I cannot. Can I provide ironclad assurances that a satisfied student will speak more freely about their university experience with their friends and relations and improve our national awareness footprint by 0.001% in doing so? I can’t do that. But it’s a strong intuition.

You don’t have to do it all at once.

That’s… a lot. It’s an intimidating amount of stuff, to be honest. I’m intimidated, and I wrote it. I think one thing to remember — before we launch into tools and possible strategies next week — is that it doesn’t all have to be one thing at one time. While it’s a Big Idea, it segments neatly into smaller units, and piloting a staff or faculty approach while thinking about how to resource the bigger picture is a proposition worth considering.

The boulder never stops rolling.

Another mistake from my past — thinking you can set this up and then it’s just an easy-to-maintain project, to be handed off. Why would I think that? The inside of the institution is a huge, complex entity — the size and scope of a small city — so the idea you can just kind of set it and forget it is goofy. Part of the Big Idea framing is that you’re not “solving a problem”, as mentioned above, but setting up an evergreen structure that will need to be fed and watered in perpetuity.

Next week: How to Build a Boulder

I’m anxious about this, but I think I’m going to drill down into a few key areas:

focus on input from boots-on-the-ground staff
ask people what they want
start with redundancies
assume disinterest

…and go from there. I’m looking forward to it and scared of it all at the same time.

February 7, 2021

Soundtrack:
Various Artists, “Somewhere Between: Mutant Pop, Electronic Minimalism & Shadow Sounds of Japan, 1980-1988“
Gacha Bakradze, “Obscure Languages“
David Bowie, “Heroes“
Four Tet, “Parallel/871“

*if you remember me saying this was three parts, you’re right, but this part wound up so sprawling that I wanted to push the tools piece to next week. I have a job and I’m working on an LLM and have lots on the go! I can only do this on Sundays! Sorry not sorry!