Last week I had an interesting experience, presenting at a workshop on regulating digital media.  (My presentation is here, for those interested).

The folks attending were, in large part, those to whom Government (in its various iterations) has decided it falls to Do Something about the regulation of social media.  However the real problem they have, as I saw it, is that the current model of regulation just doesn’t work in social media.  This is because the current model relies on the fact that information is always married to an institutionalised means of distribution and this means of distribution is both the dominant partner in this relationship and can be regulated.  However, social media is all about the liberation of information from a particular means of distribution and therefore the means of distribution (the media) has ceased to be a gatekeeper through which we can control information.

Here is an example, drawn from some of the case studies discussed.  A nightclub in Belgium was running a party called French Kiss.  On its Facebook page it ‘advertised’ the fact that if women were prepared to have a ‘sensual’ kiss in front of its photographer they would get three free drinks.  This was accompanied by an image of two women about to indulge in such a ‘sensual’ kiss.  This ‘advertisement’ breaks a whole set of rules, particularly those in relation to sex and alcohol and the Belgian regulator therefore felt empowered to ask the club to remove  this from its Facebook page (which I believe it did).

This seemed to be a pretty straightforward case as far as those in the room were concerned.  But then I chipped in and asked what would have happened if this information had been presented as a handwritten message on an A-frame board in front of the club.  The consensus from the room was that this would not have been a problem, or more specifically it would not have been a problem for the regulators because this form of communication was ‘outside of remit’.  I asked therefore how remit was determined and the reply was visibility.  Because Facebook was seen as a form of media and media is assumed to have high visibility (as well as high controllability)  it was thus within remit.  But the problem, as I had pointed out in my earlier presentation to the group, is that Facebook is not really a form of media, it is better understood as a tool.  It doesn’t bring with it any assumption of visibility or distribution – in fact it is highly likely that many more people would have seen a board outside the club than would have seen the Facebook page.   It seemed to me that by determining competence based on defining the media within which that competence applied, we were creating a situation as absurd as saying that shooting someone in the head is not permitted, but clubbing them over the head or knifing them is OK (its not what you do, it’s the tool that you use).

In essence, what this case study illustrated was the boundaries of the competence of institutionalised, distribution based regulation – with this example clearly falling beyond those boundaries and thus, essentially, defining the boundaries of the regulators’ incompetence.  However, when I said that I thought we were engaged in an exercise in defining our own incompetence I did not see too many nodding heads!

There was another example which highlighted the criteria the ASA in the UK has recently introduced.  This time it did indeed step beyond the boundaries of using media to define competence and looked instead at the behaviour of an organisation within a social space (in this instance again, its Facebook page).  This sort of approach is, in my opinion, starting to get closer to the mark but still has within it some glaring contradictions.  The example concerned a cosmetics brand and the idea was to determine which elements within what it was saying were inside or outside of remit (that word again).  The guidelines that now apply in the UK state that messages that have an explicit intention to sell are inside remit, whereas those that can be classified as customer service are outside of remit.  This division of a Facebook page into selling or not selling – inside or outside of remit – did strike me as an exercise in drawing up a set of boundaries in order to make reality fit the rules, rather than creating a set of boundaries that reflect reality.  Facebook can be used for a whole variety of purposes and ultimately what matters is staying within some broadly acceptable rules of behaviour, irrespective of whether something is a selling message or a customer service response.  Dividing activity into sections in order to determine remit seems to me to be a rather false and ultimately unhelpful way of going about things.  Again, it seemed to be only me that thought this.

Interestingly, almost all the examples discussed concerned Facebook.  Perhaps this is because a Facebook page can most closely resemble a traditional brand website and the institutional levers of control are therefore more available within the Facebook space than in other areas.  So, for example, there appears to be no guidelines for how to deal with a Twitter tag.  The creation and usage of a Twitter tag can be every bit as influential as the creation and usage of a Facebook page.  The classic example here, of course is the now infamous Habitat #iranelection incident.   Clearly what Habitat did was squarely in the territory of the unacceptable.  Because it referenced a sale, it therefore would have fallen within remit as it would have been defined by the ASA (if the ASA were looking at the use of Twitter tags).  But of course, there is nothing wrong with ‘advertising’ a sale under the ASA’s current code – thus as far as institutionalised regulation is concerned, Habitat’s actions would have got the green light.  Of course in the world of reality, as distinct from the world of advertising, the community was the regulator and Habitat got flamed – which points to another issue: the extent to which social media is (or can be encouraged to be) basically self-regulating.

At the heart of the whole issue, in my opinion, is the fact that marketing is basically dishonest.  I sensed a certain discomfort when I presented this idea to the meeting. Successful marketing is, by necessity manipulative.  It is about persuading people to buy products they don’t need.  Or about convincing people that two products which are identical are actually vastly different, often based around messages about what type of people use the product (smart / pretty people use this product – so if you don’t use it, you are stupid / ugly).  For example, hark back to the old familiar ‘whiter than white’ washing detergent strategy.  If you believed the ads, having white sheets was not about cleanliness, it was a badge of your competence (remit?) as a mother and housewife.

This is the reason why many marketers’ first instinct on entering the social media space is to disguise who they are – pretending to be a consumer, or trying to create fake consumer organisations.  In the transparent environment of social media, the dishonest or manipulative agenda of marketing is readily revealed.  And thus the only way to continue to operate in the old way is to create a disguise.

The fact that we had the ability to control the clothes marketing wears when it goes out in public, should not fool us into believing that it dresses the same way when no-one can see it.  Any of us who have worked in marketing know that in private it wears a very different set of clothes.

And this brings us to probably the crux of the argument.  Marketing itself, not regulation, is going to have to fundamentally change if it is to work in the environment of social media.  We will not be able to make black and white rules in the social media space in the same way as we could when evaluating ads.  That is why, in the wider society, we don’t have an all-encompassing Honesty Law (although this doesn’t mean that we permit dishonesty).

The role of hard-and-fast regulation needs to give way to the provision of guidance on codes of acceptable behaviour which can accommodate all of a brand’s actions, not just simply the ones which take place in a given type of media.  And, to a large extent, the public or consumer, need to be encouraged to make their own conclusions as to whether a brand’s behaviour accords with acceptable behaviour and thus make it worthy of trust.

This, ultimately, was the conclusion I presented to the meeting and fortunately, unlike with some of my other contentions, I do believe there was a reasonable degree of consensus on this one.