Throughout internet history, there has been confusion about what is freedom of speech, protected by federal law, and what is permissible speech at internet, hosting, email, and content providers. US internet-based providers tend to stick closely to federal law as a matter of philosophy. However, each provider has specific contract rules outlined under their Acceptable Use Policy (AUP) or Terms of Service (ToS) that are more stringent than federal law. Violations of the AUP and ToS are breaches of contract and enforceable under the terms of the contract.
During the best of times, these contract limits are hotly contested and frequently debated within the industry. During times of civil unrest and overwhelming federal response, these debates increase in intensity. Legal challenges to your policies are increased during time of civil unrest, so ensure your Legal team is involved as early as possible.
While my recent focus is on deliverability, most of my career has included both Compliance and deliverability. I’ve taken part in several conversations recently where experienced Compliance employees – who are deeply familiar with federal law, their employers’ contracts, and their employers’ lawyers’ decisions – have made statements regarding the acceptability rhetoric as part of their AUPs. Because these conversations are focused on rhetoric only, they have a chilling effect on less-experienced employees and can prevent them from acting when rhetoric turns into a call to action, or CTA.
There are a few questions to answer with your Legal teams and your Compliance teams in order to adequately address the potential misuse of your service during times of civil unrest.
What is the difference between rhetoric and a call to action?
Rhetoric is speech designed to have persuasive influence on your audience, but is often understood to have little substance or meaningful content.
A call to action, by contrast, is a request to take an action with the intent of achieving a goal.
Rhetorical speech normally contains a call to action and sometimes it can be difficult to tell when speech is rhetorical. The rhetoric stirs up the emotion that motivates people to respond to the call to action, but some language can be rhetoric in one situation and a call to action in another, based on the external situation, speaker, and audience.
When should Compliance initiate conversation with their Legal teams about how to enforce their AUP and ToS during times of civil unrest? What, if any, additional training do Abuse and Compliance employees need to recognize rhetoric and calls-to-action?
Optimally, you should have these conversations during times of peace and implement training and testing to allow less-experienced employees to grow their confidence and ensure your Legal team agrees. If you haven’t done this, set up a meeting with the teams, take examples, and set clear internal standards – including the standard of what should be brought to Legal immediately.
New employees should be taught past examples and taught the outcome of those cases. Training should include examples where the customer became abusive towards the employee and what their next steps should be when, not if, that happens to them.
Legal and Compliance teams should meet on at least an annual basis, and after any major legislative changes, to ensure alignment and legal compliance. Training should be reviewed immediately after those meetings to ensure they are in alignment with any changes and updated with recent examples.
Should companies change how enforcement of calls-to-action, such as those inciting violence, during times of civil unrest?
No. Your company may decide that different specific situations are rhetoric or CTA, but how those are enforced should be consistent over time. If a customer is inciting violence, that customer should have the same repercussions regardless of external circumstances. Your company may want to publish a statement about the repercussions of violent calls to action, but your enforcement policy should remain the same.
An exception to this is if a current case load and severity of cases lead your Legal team to determine that past compliance standards are insufficient and your company is committed to maintaining the new standard in the future.
The line between rhetoric and a call to action isn’t always clear, due to how languages blend persuasion and direct orders. Make sure you’ve taken steps to align with your legal team and that anyone who is involved in enforcing policy is trained and confident about enforcing your policies.