The "Ombudsperson" Blogger?

What could the lovely art of the blog possibly have to do with a complicated legalistic term like ombudsing? What the heck is an ombudsperson anyway? Grab a stiff cup of joe, because we all need a wake up call. Some of the legal terms in this post may not be easy to grasp at first, but I think they will be necessary to know for our survival as the Wild West conducts its last shoot 'em outs before we finally have to civilize the blogosphere. (Not to say that there can't still be rebel encampments in caves and forests around the perimeter...Vive la resistance!)

Future blogosphere will need better rules & guidelines or Sheriff Owens?

Blogging Shoot Outs
I am bringing up the role of the ombusperson because I think perhaps the training and legally set up privileges that ombuds officers have can and should be extended in some respect to bloggers. As I mentioned in my last post, Twitter is like a Grand Bazaar. Well Blogland is a bit like the wild West. In both of these places, law and order do not exactly prevail (images of Indiana Jones running through the bustling bazaar chased by theives or cowboy showdowns at dawn come to mind). Well, I think it's high time we laid down some civilizing structures before someone loses an eye!

Controversies have recently errupted over bloggers, such as the recent case with Chris Brogan, in reviewing K-Mart, being accused of losing integrity, trust & credibility due to conflict of interest issues over accepting payment from the company to review their products. In the opposite court, some companies are now shy of working with bloggers after the Motrin affair. In both cases behaviour in my mind is analagous to the mob psychology of a lynching. Well, while Billy the Kid tall tales may be fun to observe from the outside, being in "those" shoes is another story. No one needs that kind of stress, and it shoudln`t be necessary in a fair and civilized society.


For some more background on the Chris Brogan and K-Mart topic, if you aren't already in on the debate, here is one example by Ben Kunz (himself in the ad biz) that implies Chris is in a conflict of interest and likely to lose credibility if he keeps making `sponsored` posts. Here is Chris Brogan's own response to such accusations. My own personal view on this particular case is that, with good intentions to set an example for how to monetize blogs, Chris has stepped into a hornet's nest.

I've been watching Brogan for some time, and I have not lost my trust in him nor his word, but I do feel he is on fragile ground. I also have to agree that I do not think that simple disclosure such as he gave for his K-Mart piece will be enough for the future of blogging--hence this post. Such disclosure has to be based on some sort of standard to give it real meaning, and bloggers also need some sort of protection when conducting corporate product reviews, so that they do not feel afraid to put out negative reviews. Of course, companies need protection from bloggers too. Fairness to both parties is essential to any good contract.

While journalism standards have been bandied about in this debate, blogging isn't always journalism and most bloggers aren't paid by only one large corporation (most, like me aren't paid at all) the way a media corp can buffer their journalists from external monetary rewards to keep their views "pure". So applying the rules of journalism to blogging is a tough one. However, the ombudsperson's role has definate elements that could be transferred over to the blogging arena. With the influence and readership of certain bloggers reaching mass proportion, I think it's high time we ramp up and put some of the systems that worked for ombudsmen watching over the old Nordic kings, to work for bloggers when working with corporate thrones.

A Background in Ombudsing
When I was at Simon Fraser University, I had the privilege to be appointed before I graduated to serve a year term as Ombudsperson. I worked with Laurine Harrison (now deceased but always in my heart) who was the permanent Ombudsperson for the university, and from her I learned about the incredible role of the ombudsperson in society. Ombudsing is an old concept with origins dating back to 1241 in Denmark. The ombudsperson was the representative of the people to the King, and could help stick up for the little guy that typically wouldn't have a voice. This gave the king access to the dissent he wouldn't normally hear (due to that "off with your head" fear), prevented rebellion, kept people happy, and generally helped kingdoms maintain more stability in the long run. In order to be able to freely criticize the king, the ombudsperson was set up in such a way to be able to speak for the people with impunity from punishment from the king.

What an incredible development in how to establish a fair system! And not all that different from bloggers today! I think the success and populatity of blogging today is one of the best tributes to the "little guy/gal" I have seen in history. And they can learn from the tradition of the ombudsperson how to safely take their nacent niche to the next stage of evolution and integration into the existing corporate and political structures of our world.

Today ombuds offices can be found in most governments, universities, corporations, and many NGOs. When I took the position of ombudsperson at SFU, I was trained in the following:

• how to work at "arm's length" from the very organization that pays you
• how to maintain a neutral, unbiased, stance and avoid conflict of interest
• the principles of administrative fairness and confidentiality
• how to engage in conflict prevention and resolution
  
• negotiating the tricky space of how to neutrally review your own organization

All these things had previously seemed like notions that would be nearly impossible to achieve for a human being operating in the real world. Everyone is "biased" in some way I thought. No one could maintain professional neutrality. However, the readings and trainings I received for the job taught me that indeed, it was possible to maintain a neutral unbiased stance (at least enough of one to get the job done properly), deal with sensitive cases where many people are in a tizzy, maintain distance to sometimes negatively review the very organizations that pay your lunch ticket, and work in ways to systematically bring more fairness into the system. How lucky I was to receive this training, because what I found was that it has helped me in every single job I have had since then! Now, I would like to offer what I have learned to the world of blogging as I believe it can be of help, rather than resort to gun slinging myself! (We Canadians don't go for that much.)

My Suggestion for a Solution to the Wild West Blog Mentality
As mentioned, we are entering another stage of the game where star-level blog authors need to navigate some sticky territory due to the scope and range of their audience and the monetization they may receive for their work. If some of the rules that apply to ombudsing can be transferred over to bloggers, through legal contracts on sponsored blogs, and disclosure of how this system works, it would go a long way to prevent real and perceived conflicts of interest and the slippery slope of losing neutrality to the ones who pay your bills. At the same time such new contractual obligations would alter the relationship between blogger and company sponsor in a few ways that might take some training and adjustment to get used to.

In order to wrap our minds around how bloggers can work more like ombudspeople when they are sponsored by a company to blog about their product/service, some important concepts need to be understood. I'm not a lawyer (and if any lawyers out there want to pitch in and help further this discussion, jump in by all means!), and many of these terms have legal implications, but the ombudsperson (and potentially blogger) operates in a special jurisdiction with some privileges protected by law, as well as some major responsibilities to maintain neutrality.

Necessary Terminology
The MIT Ombuds Office offers a wonderfully clear and simple glossary for some of the central terms that affect what an ombudsperson does, like confidentiality, neutrality, informality and independence. It is necessary to have a basic grasp on such terminology in order to understand and try and provide solutions for the debates going on surrounding Brogan's work for K-Mart.

If you really want to dig in, check out the Codes of Ethics & Standards of Conduct, by the Ombudsman Association. In particular, see what they have to say about "privilege" which denotes the arm's length relationship with which an ombudsman operates with their hiring organization.

"Privilege is a legal term which describes a relationship which the law protects from forced disclosure. Traditional privileges are client/lawyer, doctor/patient, priest/penitent, husband/wife. An ombudsman privilege differs from these other forms of privilege because the office holds the privilege and it cannot be waived by others. The privilege is necessary to preserve the process that allows people to come forward to resolve their concerns in a confidential setting without the risk of reprisal. [And in the case of bloggers such privilege would allow bloggers to write without fear of recourse, such as payment or legal pursuit, if their review of an organizational system/product/service is not favourable]."

How does this apply to blogging? Well, for instance a blogger, in order to maintain neutrality, could have, in his/her contract with their hiring agency, some statement/s about their privilege to write commentary, positive or negative, without fear of retaliation by the company in the form of non-payment, or taking the blogger to court. Now, this is new and shaky territory for bloggers. It is a territory of ethics and excellence. If you are a blogger who likes to flame and fly by the seat of your pants, you wont likely end up territory, but I think that there are many bloggers who can.

Of course, this is just an intro to this topic, and there are complications. For instance, the most tricky difference between a blogger and an ombudsperson is that a blogger doesn't always work for the same organization, and the organization itself needs some sort of protection/recourse against irresponsible behaviour by the blogger.

How to Implement the Ombudsperson/Blogger Model

1. Create a professional association
I don't think this sort of paradigm shift and contractual change can happen over night. It would be best if some workshops were held by bloggers with actual ombuds officers, and maybe lawyers, and experts on journalism to form some sort of accrediting system and potentially society that implements them regularly. Just like project management has become an accredited profession, perhaps such a system could help train and accredit bloggers. Such an organization could have a name like "Association of Professional Bloggers" or the like. In this way, bloggers with such certification would have received training in how to negotiate the fine line of how to maintain a neutral professional opinion, even when paid for by a company to review a product/service. They could even build cool blogging guildhalls like the one below in London in the 19th century.



Stop the press! I have just found that a similar organization DOES exist. The Media Bloggers Association (MBA). A little confusing with the acronym, and more along journalism, rather than ombudsing lines, but a great initiative. It is new, and if you are a blogger you can find about what they offer as a member here. They also offer courses that would offer bloggers the same kind of advisory training on legal and insurance issues that professional journalists would receive. Here here! About time I say. Caveat: As I am unfamiliar with this organization, I cannot thoroughly vouch for or against it, but it does look promising, especially at the low cost of $25 to join and with courses designed by "David Ardia of the Citizen Media Law Project, which is jointly affiliated with Harvard Law School’s Berkman Center for Internet & Society and the Center for Citizen Media and Geanne Rosenberg of the City University of New York's Graduate School of Journalism and Baruch College."

2. Improve contracts bloggers work under and communication of terms to public
The second thing that would have to happen is the drafting up of a new kind of contract for bloggers and companies which protects the interests of both, as well as the interests of the readers of the blog to fair and unbiased copy. So, companies for instance could obtain the service of a star blogger to promote their product, but if the review is negative, perhaps the company could have a veto option on publication, although they would still have to pay the blogger for the review (a negative review can be as much if not more valuable than a positive one in my view) . Or the company could even throw the doors open to accept that negative reviews will come and embrace that this is an opportunity for change and transparent dialogue. In this case, stipulations preventing retaliation by the company would have to be drafted. (These can be quite complex in the ombudsing case.)

I doubt that companies will embrace the latter option easily, so I offer the first as a quiet opt out right to veto publication. In the end, be the review positive or negative, the company would have their valuable review, and the blogger would be paid. If the blogger has a favourable review, it can be published, with the disclosure that it is a sponsored review under the stipulations of the Association of Professional Bloggers (or whatever such an organization might be called) mentioned above.

What Do You Think?
Isn't it high time bloggers stepped up to the task, united and put some best practice standards to their trade? I think MB Association above is on the right track, and I for one will be checking them out further. This doesn't mean that everyone would have to join, but if I was at super-blogger level, to be part of such a professional association, with all its practical and legal support, would be one of my prime directives.

In the grand old tradition of a guild of craftsmen, bloggers are reaching the critical stage where they need to band together and come up with some proper rules of the trade, and protection so they can continue to practice their craft with both critical excellence and responsibility. Thorny issues also regarding insurance and culpability will become more rampant as blogging takes a stronger hold in the mediashpere, and we need to be prepared. Blogging has come of age, and we need the educational and legal systems to catch up with it, so that well intentioned pro-level bloggers like Chris Brogan don't get caught in the cross fire of the bloggin' wild wild West any longer.