Tag: law

Risk free fallacies

Can we really build a risk free world?

One of the conceits of the late Twentieth Century was that we can engineer risk out of our lives.

Derivatives like Collateral Debt Obligations were thought to overcome financial risks, think contracts would eliminate business risks and wise central banks would massage the economic cycle to banish the risks of economic crises.

In schoolyards, the kids are banned from doing cartwheels and playing ball games – in response to a recent edict prohibiting physical activity at a local school an education department spokesman said the ban was to prevent, and not in response to, playground injuries.

So nothing’s happened to provoke a ban, just someone decided there was risk and the first reaction is to eliminate it rather than manage it.

In a litigious society where a culture of blame has developed this reaction is understandable. If a kid gets hurt in the playground then the parents might blame the teacher and one should be under no illusion that in the NSW state education system, the industrial concerns of teachers will always trump the welfare of students.

So the cartwheels must stop.

The strange thing with our culture of blame is that when something goes seriously wrong, such as the implosion of the banking system due to greed and misunderstanding of risk, no-one is held responsible.

For lawyers, this culture is understandable. After all, their job is to warn clients of legal risks and it’s true that every time we walk down the street or jump in our car we might make a mistake that could see us in court.

But we learn to manage that risk and we accept the odds every time we choose to drive down to the supermarket.

The danger in believing we can eliminate risk is that removing one element of risk often results in unexpected consequences – they are even more unexpected when you don’t understand the risks in the first place. CDOs and the shadow banking system are a good example of this.

Government seek to pass laws eliminating risks and in doing so create new risks, particularly when the Acts they pass are poorly written and badly thought out.

There is always the question of what risk we are addressing – in the modern corporatist political system, the PR risk to a government always takes priority over a real risk to citizens. Passing a law to protect the minister’s backside might make life more risky for others.

As helicopter parents, always hovering over our children and blaming teachers, schools, neighbours and other parents when something goes wrong, we’re creating a whole set of risks we don’t understand.

For politicians, managers and leaders their main responsibility is to manage risk, not pretend it’s been eliminated by the latest memo, law or silly schoolyard ban.

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When tails wag dogs

Have essential functions taken over business?

A recent Business Insider examination of how patent “aggregator” Intellectual Ventures works is a good example of one of the problems in modern business – essential ancillary processes have overtaken doing business itself.

Intellectual property rights are an important part of doing business, however what should be an adjunct to doing business has consumed many enterprises.

As the Business Insider article point out, Intellectual Ventures has become some sort of modern day privateer, extracting loot from hapless companies that cross its path.

This problem with intellectual property is part of a larger problem with lawyers, where they have been given too important a role in business.

In any civilised society lawyers are essential and carry out an important role but in western society over the last fifty the scope of the legal system has expanded so dramatically that now the legal tail wags the business dog.

Today company directors, business owners and entrepreneurs live under the shadow of breaching some obscure law that they had no inkling existed. Of course, the lawyers can help with this.

A similar thing has happened in the financial world, accountants have also moved from being an essential adjunct of business into being at the centre of most enterprises.

Much of this explosion in lawyering and accounting has been due to the increased role of government in our lives; each time a new law or regulation is enacted it makes it harder for the average person, or business owner,  to understand the system.

A cynic can argue this is by design but most government actions are intended to address some injustice or flaw in society. The problem is there are always unintended consequences.

One can also argue that the increased growth in business overheads like lawyers, accountants and patent attorneys is because of fat, prosperous business conditions.

So maybe what western business has seen in the last fifty years has been because of a favorable market place; politicians have introduced a morass of often contradictory financial and legal rules because they know business, and society, can afford it.

Now times have changed and both business and society can’t afford unnecessary overheads it will be interesting to see exactly how our laws and regulations evolve to respond.

Maybe they won’t and we’ll see a black economy develop where whole groups of society ignore the rules, dispense with lawyers and accountants and hope for the best. This would not be good.

Possibly we’ll see legislatures and courts winding back and reigning in some of the more silly and egregious excesses as they recognise society can’t carry the burden and remain productive.

Whatever happens we can be sure the lawyers, accountants and people like Intellectual Ventures will fight hard against any change that reduces their status and income.

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What’s a Twitterer worth?

How business can put a value on social media

$2.50 per month is what Phone Dog think a Twitter follower is worth in their lawsuit against a former employee.

As nebulous and ambiguous as Phone Dog’s claim seems to be it appears some price is being created on the business value of social media users.

To date we’ve seen services like Empire Avenue, Klout and Kred try to measure social media users’ real influence on the different web platforms which in turn allows businesses to allocate some sort of value.

As social media and the web mature, we’ll see businesses spend more time understand where the value lies online.

Each platform is going to have a different value to a business. Depending on the market, one person may be worth more on Twitter than on Facebook and similarly a business may put more value on members of a specific LinkedIn group or industry forum.

What we shouldn’t confuse “value” with is how the services themselves make money. For Facebook, the value comes from the marketing opportunities presented by people sharing their lives while for LinkedIn it’s largely coming from employment related advertising and search.

Other social media platforms are finding other ways to make money and each will have a different attraction to users, businesses and advertisers. All of which will affect their perceived value.

That perceived value is the most important part of social media. If users don’t think a site adds something to their lives, then that service has no value to anyone.

It’s tempting to think that people will object to having a “value” placed on their heads as users, but most folk understand the commercial TV and radio that does pretty much the same thing.

The real question of how much people are prepared to share online will come when they understand the value of the data they are giving the social media platforms. When users start to understand this, they may ask for more service from these companies.

What a Twitter user is worth right now is probably different to what they will be worth this time next year, but there’s no doubt we’ll all have a better idea.

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Dealing with a telco dispute

ten ways to resolve a phone company or Internet problem

Once again, Australian telcos find themselves being criticised by regulators and consumer groups for their poor performance. This time over poor service, complexity of bills and overcharging on “freecall” numbers.

The frustrating thing with all of these complaint is they are nothing new, as shown by an earlier version of this article in 2007.

So the problems with phone and Internet companies remain and many customers, both consumers and businesses, are forced to go through the time wasting dance of dealing with call centres, complex contracts and often finishing with consumer protection organisations like the Telecommunications Industry Ombudsman or other state and Federal authorities.

However there are ways of reducing the problems and improving your chances of resolving issues quickly and on your terms;

Call them

The first step when you realise you have a problem is to call them. This is the quickest and easiest way to resolve things. If you can solve the problem at this point, you will save a lot of time, money and frustration.

When dealing with any call centre, there are a few important things to remember. You must remain polite, you must never make threats and you should note everything. A lot of this can be easier said than done.

Take notes

From the first call, you must take notes. Every time you speak to the call centre you must note the date and time you have made the call, the time they answered, the name of the person you spoke to, what you discussed, what was agreed (if anything) and the time the call ended. Any important discussions should be confirmed in writing.

Be Calm and Polite

At every stage of the process you must stay cool and polite. Do not lose your temper and do not abuse people. If you find the person you are dealing with is rude or provocative, or if find your blood pressure rising, then politely finish the conversation and call back later later.

Don’t Make Threats

Making threats will hurt your argument and draw the process out. Threatening people only makes their attitude harder or locks them into a position where they cannot negotiate with you.

Suing the ISP, complaining to the TIO, going to the media or calling consumer affairs are all options you have available should everything else fail but the aim is to settle the matter quickly and amicably without going to the time and expense of complaining to other authorities.

Do it in writing

It is important to confirm everything in writing. All too often people believe a matter has been settled only to find it is still a problem months or years later. Follow up any important conversations with a letter confirming the details including the time, date and person you discussed the issue with.

This is very important if you have reached an agreement settling a billing dispute. Confirm the details and the agreement in a letter sent by registered post to the organisation, any faxes or emails should be followed up by a letter.

Any emails about the matter should be printed out. Despite the claims of a paperless world, the only thing that really matters in disputes is what is written on paper.

Make sure you keep the full story in writing and this includes printing out emails and web pages.

Follow the ISPs complaint procedure

You may need to start a formal complaint within the organisation’s internal complaints or appeals procedures, the ISP or telco support line should be able to tell you how to do this. For smaller ISPs there may not be any formal procedures. A letter to the senior management may be necessary to get the right person to respond.

Contact the ISPs management

If the ISP doesn’t have a formal dispute procedure, or if it doesn’t respond, forward your complaints with copies of all the supporting documentation to the directors and Managing Director or CEO of the company concerned.

Generally directors and senior managers hate this and will make their displeasure known to the people responsible within their organisation. Again, be polite and respectful, make no threats and express your desire to settle the matter quickly and amicably.

Pay the bill

Some ISPs have a habit of calling in the debt collectors at an early stage. This complicates the matter and can also affect your credit record. Generally, it’s a good idea to pay any disputed amounts and then continue arguing about the facts of the dispute.

If you have direct debits with the ISP it may be necessary to stop these to avoid further disputed debits to your account. Do this in writing to the both the ISP and your bank with a cover letter informing them the direct debit has stopped. If you do this, make sure you are within your contract and you have a backup Internet service as the ISP will almost certainly stop your service immediately.

Complain to the TIO

If you are still unhappy, complain to the Telecommunications Industry Ombudsman. They like you fill in their web complaint form but they will accept phone calls and written complaints.

Keep in mind they will not help you unless you’ve already tried to resolve the problem with the provider, they also won’t assist if you’ve complained to other organisations which is another reason not to make threats earlier in the process.

Further complaints

Despite all of the above, it’s still possible not to have resolved the problem with an ISP. The next step is to complain to your state consumer affairs department or the ACCC. You can also seek advice from your solicitor or local community legal centre.

The aim with any dispute is to settle it quickly and amicably. The important thing is to contact your provider quickly if you have a problem. Internet providers can be difficult to deal with but with a combination of patience, persistence, good record keeping and a cool temper, you can resolve most problems on your terms.

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