Thursday, November 24, 2016

When should government agencies use a big stick versus a velvet glove? Human Services sends legal letter to 'Save Medicare' site

My daily news roundup this morning included a small story about how the Department of Human Services had sent a legal letter to the owner of the website the other week, threatening expensive legal action if the site didn't cease using Medicare's brand and name.

The letter, which was the first contact the website owner had had from the department, included a demand that the website be taken offline within 48 hours, that the domain name, Facebook page and Twitter accounts be cancelled or changed (per the letter embedded below), and that the owner does not use any derivatives of the Medicare name and brand in future - under threat of legal action seeking costs.

For a lawyer this is a fairly standard and templated first stage legal action for a breach of a trademark, and letter like this are regularly sent by companies to other companies who are intentionally and knowingly breaching Australia's trademark laws.

However when sending this to an individual volunteer, who happens to be a 66 yr-old retiree, who created the website in support of Australia's world class health system, it can come across as a very sudden and threatening, even bullying, over-reaction.

As the owner of the website said to Fairfax media, "I've committed a terrible crime, I don't agree with a government policy...".

The matter has now become a cause célèbre for GetUp and sections of the media, and is nudging into the political space as well - impacting on the department's reputation in the process.

Now I've had some experience of this type of situation. When working in a government department, managing their digital presence, a senior manager in another area brought to my attention a website operating in Australia which claimed that the department had endorsed their product.

The website included a copy of the department's branding as well as the endorsement claims, which I was told were untrue.

The senior manager wanted me to find out who owned the website so they could issue a legal letter, similar to the one issued by Human Services, and "come down on them like a tonne of bricks" (I'm paraphrasing the sentiment).

I suggested taking a glove, rather than a stick, approach - and first speaking with the website owner to see if there was a misunderstanding that could be resolved before rolling out the legal guns.

The senior manager was happy for me to give it a go, so I contacted the website owner by email and asked if we could have a conversation about their use of the department's branding and endorsing text.

They agreed and we had a good conversation - they were a small business owner and entrepreneur, who had seen a great product overseas and intended to import it to Australia and had approached the department to check that the product would be acceptable and useful in its performance.

A letter had been sent from the department, signed by a senior executive, providing a bureaucratic response that, to a trained public servant, said essentially "we see no issues at this time, but you're on your own".

However, as someone with little experience with government, the letter appeared like a glowing endorsement signed by a very senior official, encouraging the small business owner to put up the department's branding and a statement about the department endorsing the product.

When I explained the matter more clearly to the small business owner, they immediately apologised and agreed to remove both the branding and the endorsing text from his site. I asked for that in writing, and they sent me an email.

True to their work they took them down, and the department sent them a very nice letter (which I wrote), signed by a senior executive thanking them for their prompt action and wishing them all the best success in their future entrepreneurial endeavours.

While not completely similar to the 'Save Medicare' situation, this example could very easily have escalated if someone like me wasn't involved in the process.

Going to the stick first may be tempting to lawyers, who are used to dealing with lawyers, and to public servants who are used to dealing with knowledgeable and experienced public servants.

However the average Australian doesn't have a legal degree, an understanding of trademark or other IP laws, or the finely honed senses that (well-educated) public servants develop over the course of their career.

In this case the media have already pointed out that political parties and individual politicians have also used the Medicare logo and colours in their material in support or opposition to various government policies around the service - but none have received the same kind of legal demand despite essentially doing the same thing as this site - providing a political position on a service most Australians use.

So the legal process already has had a bad look as it doesn't appear to be fair or equitable. On top of this there appears to have been no attempt to resolve the situation more 'peacefully'.

Given the website had almost no traffic prior to the publicity fostered by the legal letter, ultimately this is a problem caused by a heavy-handed approach by the department.

This is surprising because Human Services, via it's Centrelink business, has long seen public groups use its branding in protests about the service. They generally monitor them, only taking action if there's malice or commercial gain involved.

However it only takes one senior manager to assume that someone who puts up a protest website must be malicious to damage the department's brand, and the reputations of  the Ministers involved.

In the SaveMedicare situation, the department could potentially have had a more equitable solution by approaching the website owner and having a conversation, rather than leaping to a legal attack.

This doesn't mean sacrificing the stick. It can be kept in reserve, and sometimes will need to be used, but it does mean thinking through the consequences of using the stick before it is wielded. Sometimes the stick hits back - hard.

Below is the legal letter, now shared publicly through the media.

The website Facebook page and Twitter account remains online, past the deadline for removal. While the owner has been clear that they cannot afford legal costs, GetUp and other groups are mobilising in support.

Even if pursued and successful, the legal action is unlikely to dissuade any future individuals from use of government branding - it may even encourage them to do so more often.

There's still time to deescalate the situation, and avoid further public damage to the agency, though it is unclear if the department feels it would take more damage from proceeding or ceasing action - damage it could have avoided entirely with a little strategic thinking.

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