Frank Tunney was the best attorney I ever butted heads with.
Frank (who died in 2003 in a car accident) was general counsel at a company where directed corporate communications. We had an opportunity to participate in a story that wasn’t business-friendly, but we had a story to tell that would have made our company look good.
The lawyer’s job is to minimize risk, and saying nothing creates the least risk. This was the position Frank took in our meeting with the company president. When he finished outlining his argument, he said, “That’s the legal perspective. Now Shel will explain the PR benefits we can expect from going ahead and being part of the story.”
While the president ultimately sided with Frank, it was one of the rare times I’ve encountered a lawyer who understands that the legal factors aren’t the only ones a company should weigh when making a decision. He understood that there were times when the value derived from communication could be greater than the legal risk the communication creates.
Frank and I had a great relationship during my tenure with the company.
You have to wonder, though, if there’s a relationship at all between the communications team and the lawyers at General Mills.
In case you missed it, General Mills backtracked recently on revised language to its online terms of service, which are posted to its website. The revision appeared shortly after the CPG company lost a motion to dismiss a consumer lawsuit brought against the company in California. The new terms of service incorporated the concept of “forced arbitration. According to a New York Times account, the new language appeared in a bar that spanned the top of the home page, reading:
The article quotes arbitration expert Julia Duncan, who says the new terms was General Mills’ way to “protect the company from all accountability, even when it lies, or say, an employee deliberately adds broken glass to a product.” Such forced arbitration clauses aren’t new. They routinely appear in cell phone and credit card agreements. But they’re not common on websites and haven’t been applied to social media.
Yet the public outcry that followed the posting of the new terms suggested that as benign an action as liking the company’s Facebook page—or the page of any of its products, like Cheerios—would be construed as a consumer taking advantage of a company benefit. Downloading a coupon or leaving a comment to one of the company’s blogs would also fit that definition.
The backlash was so great that, on Saturday, the company reverted to its previous terms, but claimed it was taking the action because the new language had been mischaracterized by those reporting it. “Now one is precluded from suing us by purchasing our products at a store, and no one is precluded from suing us when they ‘like’ one of our Facebook pages,” wrote external communications director Kirstie Foster on the Taste of General Mills blog. “That was either a mischaracterization—or just very misunderstood.”
Foster argues that there aren’t many disputes with customers “and arbitration would have simply streamlined how complaints are handled. Many companies do the same, and we felt it would be helpful.”
The quick reinstatement of the previous legal terms is laudable, but a relationship between legal and communications might have prevented the kerfuffle in the first place. I have no insider knowledge, so I don’t know if the social media team knew the legal department was planning to alter the terms. Having that information shared with them would have enabled them to anticipate the response and advise either to reconsider the decision, alter the language, or engage in additional communication in order to avoid misunderstandings and micharacterizations.
They also would have had the opportunity to produce a cost-benefit analysis. What is the potential savings from an arbitration clause versus the lost opportunities as consumers consciously opt not to like General Mills pages, download coupons, or otherwise engage with the company online? It could well be that the legal argument would prevail in such an analysis, but at least the company would have made the decision from a position of knowledge.
In her post, Foster notes, “We never imagined this reaction,” which earned derision from commenters. “Your comment that ‘We never imagined this reaction’ is beyond naive and I suspect is short hand for ‘Damn, we got caught!’ wrote one. “You never anticipated such a reaction?” wrote another. “Even small-potatoes entrepreneurs know that if given their way, lawyers will draft outrageous clauses that assign the rights to all things at all times throughout the known universe because that’s what lawyers do. That’s why anyone who runs a business successfully knows to curb the lawyers so as not to chase away clients/customers.” A third wrote, “Never imagined the reaction? Really? Get some people that actually pay attention to the net rather than lawyers that just drool at precedents.”
In most cases, communicators get approval for their work from the legal team. It’s time for the legal team to start checking their decisions with communicators, since the public reaction to such decisions potentially can have as big an impact on a company as a lawsuit.