The Problem with Pinterest is the Terms of Service

OK, before I get anymore troll action from Pinterest fan-girls who are upset that somebody isn’t impressed by the business model of their favourite new web-tinsel frivolity… let’s all just pull our heads in and look at this as grown-ups. It’s not about your jollies or the things you do with your web-besties when porn loses its lustre – this is about the law.

When you join and upload content to Pinterest you are legally entering an agreement that affects you (as an adult in the real world) and at least in that regard it should be hitting your radar. Because, love their service or not… the idiot that will be sitting in a courtroom is more likely you than representatives of Pinterest. It’s in their TOS… that TOS that pretty much throws you to the wolves.

Kalliopi Monoyios posted an article this week titled Pinterest’s Terms of Service, Word by Terrifying Word pointing out the magic words within their TOS that should get your adult brain firing. One paragraph from the Pinterest TOS reads:

By making available any Member Content through the Site, Application or Services, you hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services.

Kalliopi points out the bits you need to be concerned about… “worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense… yada yada. Yes, pretty much all of it.

In simple terms you hand over the content you uploaded to your Pinterest account… it goes to Cold Brew Labs forever and you can’t change your mind and they can on-sell, repurpose or do whatever the hell they want to squeeze a quid of profit from it anytime they consider it worthwhile. You have given away your stuff.

Pinterest’s Aggressive Opt-Out not Opt-In Feature

Oh yeah, it most likely wasn’t your stuff. Hey, it could even be my stuff or the stuff from somewhere bold enough to sue your sorry butt. It could belong to an aggressive company that protects its intangible business assets, like Getty Images. Or Associated Press. These are organisations that can and will pursue you to protect their profit margins.

Kalliopi hits it on the head when he points out that the real problem is Pinterest’s TOS “don’t mirror the intentions of users”.

Yes, Pinterest provides a snippet of code that will tell people (like they’ll listen) that you don’t want to share your online images in their service. However, as a web developer who just had to put that snippet onto my clients’ websites I don’t think it’s a good direction to head where one business model requires every website on the Internet to opt out of their environment. Here’s a better idea… ask us if we want to opt into the Pinterest service… let those websites willing to play in the little sandpit of their business model to put a piece of code into every clients website.

And you are the Sole Owner of all Member Content

Glendon Mellow brings out the most salient point in my concern about the Pinterest TOS… ownership. It reads that you:

“…are the sole and exclusive owner of all Member Content…”

and you,

“agree not to do any of the following: Post, upload, publish, submit, provide access to or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights…”

That means the only person who will get into major legal shit is YOU, the customer. Why? Because when you upload your Pinterest content for sharing you are claiming you own the intellectual property rights of that content and you are passing total control over to Cold Brew Labs to do with that content whatever they wish. That means eventually somebody like Getty Images… or even me… will come back to haunt you.

Any content creator, commercial or non-commercial, needs to be concerned about this type of business activity affecting their work and legal environment.

My point to Pinterest users is that they stand a very good chance of losing a court case if they give away the wrong person / company’s intellectual property to Cold Brew Labs. Depending on the country that intellectual property crime occurs in, they could be pursued with extreme prejudice. Pinterest got them to agree to that from the beginning.

Don’t Say you weren’t Told about the TOS

No, I’m not against social web applications and all the better if they make some money. But I am against business models that are purposefully worded to capitalise on property theft while getting their users to foot the legal payload.

And I am against the idea that every website has to place explicit code asking to opt-out of the Pinterest service. What if twenty or a hundred web services adopted that arrogant attitude? Would we have massive web page headers loaded down with a thousand explicit meta tags to opt-out of each and every one? Features like that need to be opt-in or not at all.

And on that point alone the web industry bodies should be up in arms at the management team at Pinterest.

A bad exploitative business model is just that. As long as Pinterest keep that wording in the TOS there will be an issue to answer. So go play on Pinterest until your bum falls asleep on your office chair for all I care, but don’t dare suggest (on Twitter or elsewhere) that this is an ethical manner of doing business. It isn’t. That TOS really isn’t.

Here’s a passing tip: Don’t sign dumb legal contracts on the Internet and expect that life will treat you fairly. The old saying, now almost a cliche, applies… “if you’re not paying for the product then you are the product.” Pinterest is no different.

My Norwegian grandfather was a photographer born in 1870 and he jumped ship in Australia at 19 years of age. He was a photojournalist and portrait photographer and my particular interest is in a set of 100 glass negatives and his wooden large format camera found by a local farmer in a King Island barn several decades ago. Knowing the gem he had in his possession, being an avid photographer, the farmer donated the items to the King Island Museum where several negatives and the camera are on permanent display. Several years later, they were exhibited for a fortnight at the Launceston Museum.

The glass negatives were taken on King Island from 1900 to 1910 and are significant because the island was only opened for farming in 1880 so Kittles’ captured many historic moments (including the first car on the island).

So this is how I see the project at this point. Imagine an ball of hemp twine unwound across space and time. My grandfather holds one end and I the other. My objective is to wind that ball back upon itself over and over in successive layers. Because it’s just too easy for me to look at Kittles’ photographs and imagine that I understand their context… the meaning of photographs changes as culture and society change around them. I need to understand what it meant for Kittles and why he did what he did.

The funding issue aside (and that I will need to visit King Island over the next few years several times) it seems like the place to start is right here with me. My life and context in 2012 is as relevant to the photographic journey as discovering Kittles’ context a century ago.

To that end I have slowly begun exploring several avenues. The first is self-portraiture and I will expand this year into general portraiture. The second, and I have to confess to being less than prolific, is the introduction of analogue film photography (or slow photography) with a Zenza Bronica ETRS medium format camera. I’m too poor for a Hasselblad but if anybody wants to donate one to a project feel free to contact me.

Even better would be a large format camera and dark room equipment. And funding.

I should also acknowledge that Brett Drinkwater at Tashosting provides web hosting services on the King Island Project website for free. The white-site design and building was done by me.

That sounds counter-intuitive to a lot of people. If somebody criticised your business under the old model you simply took offense and told them to hit the road. It was pretty much how the commercial world worked when customers were limited by geography to a subset of competitive alternatives.

In the modern context, every business (that has survived) has been forced to operate in hyper-competitive environments. What was once a large world with international borders and significant lag between destinations has shrunk, for the most part, to an always-on society where it’s just as easy to purchase a new leather wallet from the United States as from Bolivia, Latvia, China or Uganda. Or from the shop in your local central business district.

So we’ve adjusted our way of looking at the squeaky wheel who complains. More often than not people who complain are genuinely happy with the service except for that one glitch.

Ask yourself this question: If nobody ever complained about a product or service then how would it ever be improved? Through focus groups? No. Through progressively smart ideas in the coffee room? No.

That point of failure is a pool of opportunity to incrementally improve and you want… you absolutely need… people to complain. And the more you can tune a company culture into adopting that philosophy the more successful you can become in the hyper-competitive environment.

Points of failure provide significant opportunities at cheap cost and potentially great return. If you fix a glitch for one customer who complains then the issue won’t be had by the thousand customers who follow. It just makes common sense.

Think about it. Business A fields complaints like they were personal criticisms of their girlfriend’s underwear… versus Business B who fields complaints as opportunities to identify ways to improve and hone their service.

Who do you think wins the hearts, minds and wallets over the long-term in head-to-head competition? Yes, Business B. Hands down. Always.

A key component in your strategic e-business marketing document has to be the identification of red flags and points of failure. How to find them. How to fix them. How to assess and absorb the criticism. Because the measure of a healthy e-business is the way they respond to those inevitable failures. And how they become better and better at what they do until they are unequivocally the best.

Marketing, in the strategic sense of the word, begins with product design. The functionality, the ingredients you choose, the colours, fabrics, durability… the quality. They all work at marketing to a target customer (not many successful products are created without a user or a customer in mind). Other product choices are where and how it will be put together and under what conditions. These are all marketing decisions.

The marketing mix has five Ps – Product, Price, Place (Distribution), Promotion and People.

Apple is probably the best example that I could feed you off the top of my head. It is clear that Apple products are marketed within the design process and not just within the advertising. Apple devices, how they look and feel, what they are made from and where they are manufactured are all targeted at making the device desirable to the market. That’s the function of marketing.

As the five Ps of the marketing mix are not independent of each other you can see that the decision to manufacture in China was a marketing decision that affected price. And again, price impacts the desirability of Apple devices in the market. The decision about Apple device pricing is not about being the cheapest – it’s about being the most attractive to the market and it’s about profit maximisation. Product assembly in China means you can buy that premium product much cheaper and Apple make greater profits.

Again, you can look to the way the product is distributed – another marketing decision. It’s not good enough to just get products to market – how many iPhones needed to be manufactured was a marketing decision, where to deliver them, speed and timing of delivery, how to physically deliver the product and along which logistical highways. It’s not enough to produce the best product and only throw twenty on a shelf then fail because of over-demand and under-supply. The strategic marketing decisions at Apple affect the target market’s willingness to pass cash across the counter.

Promotion is the most noticable element of the marketing mix – the choice of channels, frequency and duration of promotion are going to affect customer perception. This is where cross-channel marketing is important. They may run a series of television advertisements, full and double page runs in specific magazines targeted at their customers and run their Apple expo. They do way much more than that but you should get the idea – the promotion mix will be different for each company based on their budget, their market customers and their ability to reach them.

The final element of the traditional marketing mix is people – who represents the company, who interacts in the stores, who answers service problems and how skilled they are at supporting those interactions. People are the company-customer interface and influence the ability of Apple to maintain and grow their customer base. People, in any business, are where the rubber meets the road.

It goes without saying that the difficult part is creating a marketing mix where all of the elements align so that each supports the others. It’s no use creating a premium product and selling it at a budget price in mid-range locations. It’s no use creating a mid-range product and advertising in the foyers of the best hotels. Similarly, if a business created a cheap knock-off product then it would be pointless trying to sell it in premium locations.

Marketers spend a great deal of time researching who and where their customers are, what they watch and read, who they talk to and who they listen to. This is entirely about putting the message where that target customer is already looking. Marketing intends to inform and influence the behaviour of specific segments of the population about products or services. The more they understand about those segments of society the more effective they will be at providing the right influence to the appropriate people. This is not about manipulation… or it shouldn’t be.

For example, if you sell Lamborghinis then you only want to spend resources conversing with people who can afford lamborghinis. Those lamborghini people are probably not interested in budget lines of soap. And those lamborghini people have already bought into the marketing of the lamborghini as a product along with it’s price, distribution, promotion and people.

The point of this post is simple – desist from the notion that marketing is about spiel and graphic design. Marketing is a corporate strategy function even in the smallest businesses. If you can do that well then you’ll make money. If you can’t do that at all then your product won’t be targeted at the right customers in the appropriate way.

The alternative is the good old shotgun approach to marketing. It barely works. The reason is no business has unlimited funds, time or people power to talk to everybody all the time. Don’t be fooled into thinking you’ve got an awesome product and you just need to advertise. Marketing is the whole kit-and-kerboodle.

Mediocrity is a demon you have to face down every single day you go to work as a web professional. There will nearly always be a safe answer that you can replicate. There are always going to be standard templates you can employ to tick the box. You can always most cheaply create products that fail to meet a client’s business objectives but technically work on the minimal list of desktop browsers handed to you by a client.

One of the most powerful statements you can make today in your workspace is to tape these two words onto the office wall… maybe above the water cooler – “FUCK MEDIOCRITY”.

Because mediocrity comes about by failing to address natural forces within your organisation or team. For example, mediocre managers tend to hire people dumber than themselves that can be ordered around. Mediocre managers don’t look for the best and most talented recruits who will challenge the status quo – people with new ideas and new ways of doing things pose a threat. Mediocre managers often reward the safe replication of a minimal product to meet short-term objectives and penalise discussion or creative solutions.

Whereas outstanding managers tend to hire the best and the brightest talent who are willing to challenge and creatively investigate new problems. Outstanding managers want people on board who make them look smarter and to challenge ideas. They let smarter people loose on their projects.

At the same time, outstanding managers are aware of their own in-group out-group behaviour – attributing successes to the in-group and failures to the out-group. This natural bias, once identified, can be compensated for so that new ideas from out-group members can make it onto the table.

Mediocrity also comes in a cultural spiral that you need to monitor. All groups, all organisations have a natural tendency to create homogenous thinkers. This needs to be designed around quite purposefully. The problem is that the normal way we form and normalise our groups is to achieve some sort of consensus. This means new people coming into the team are being indoctrinated into the culture just as much by our language and stories as by our collective ideas about right and wrong ways to solve problems. The challenge is to foster that homogeneity where appropriate – we don’t pee on the bathroom floor or abuse clients – and stamp it out where it’s counter-productive – we don’t take the easy path every time just because it’s there.

So if it’s so easy to say what causes mediocrity then why is it so difficult to find teams who aren’t stuck in it? I guess the problem is that mediocrity isn’t a binary problem. In the end, mediocrity is a slide you have to constantly watch against and possibly even prune your workforce to avoid. Look for passion, creativity and a belief in whatever it is you do. Avoid mediocre managers because they usually refuse to hire anybody smarter than themselves.

Make your business more attractive to the best recruits by constantly designing mediocrity out of your process. Or settle for mediocrity.

Jeremy Keith tells me Pruning is Bollocks

Here’s my premise::: I would suggest that the biggest problem we have with archiving anything substantial from the Internet isn’t mass archive. Our problem is digging out what should be archived & what should be let to fade away gracefully into the vacuum of history.

Jeremy Keith, in a tweet, says “That’s utter bollocks… in my humble opinion.”

Somehow I doubt that opinion is humble on the subject of Internet archival and I’d humbly reply that in my opinion, regardless of my lack of rock star conference speaking and book authoring status, when Jeremy Keith says it’s about archiving everything (culture) then bollocks to that. Double bollocks. The problem is bigger than bookmarks, LOLcats or relying on businesses stupid enough – like Delicious – to think their business model of FREE was going to take them anywhere in the long-term.

I have a number of comments and questions regarding the arrogance of a total archival of the Internet (which we’re really synonymously using to mean the World Wide Web, an application that runs on the Internet). Let’s start with the value of information.

The Quality & Value of Information going into an Archive

My comment about sifting out the crap to find the value relies on a scientific fact of life – any repository of data (and therefore information – data + context) is only as valuable as the quality of the data. Any business knows that data becomes outdated because people move addresses and telephone numbers change. Hey, people even lie about stuff – so there you go with more crap into any repository. My suggestion that pruning is a part of any challenge to archive the Internet is based on that premise… a big load of rubbish pushed into an unordered box without pruning would have limited value. It would be information soup.

Leading to my next question… considering you did work out a specific time and date to gain a snapshot of the entire web then you have to accept the errors in that snapshot devalue it’s worth. Wikipedia pages are dynamic and not static… you are going to snapshot half edited and incorrect content at an arbitrary time. My own website often edits within 24 hours after publication. A snapshot archive is without correction or retraction and loses a lot of the relevance that makes the Internet of NOW valuable.

Then I wonder about the business case: who is going to use this archive? The assumption is that someone at some time will immerse themselves in this ‘old archived Internet’ – then who? And why? How will this make money? Who will perpetually maintain it and where? Is this a private organisation? Who will have access to that information – because if some of that information is Jeremy Keith’s then I can assure you some of that information must be mine and yours.

The Privacy & Legal Issues of Archiving ‘Our’ Information

I do not believe any private citizen has the right to make choices on my behalf about what is kept in an archive. If I am as mad as hell about Facebook’s perception of my right to control my own information then I certainly don’t think a group of private citizens on an obsessive collection bee should be allowed to hold AND share that information. Who are these archive gatekeepers? If I delete from Facebook then not only should my data not be publicly visible online but ALSO it should be deleted from Facebook’s database AND any Jeremy Keith archive had better be willing and able to scour it out of their system.

Begging the question: any information currently in that snapshot that has been found to be libelous must be removed… so how will this affect a snapshot of everything on the Internet? Because if you disseminate libelous statements then you are, from my understanding, committing an offence. The next question is: an offence in what country and jurisdiction? That can be a dangerous legal minefield. For example, what about copyright of that archival content? What right does a private individual have to make copies and keep copies of websites full of proprietary data? Our relationship is with Facebook NOT Jeremy friggen Keith.

Leading to my next issue… it’s inevitable that in the creation of an Internet archive there will be infringements on people’s human rights. A common example would be the case of workplace or schoolyard bullying via Facebook – an example this morning on the radio was of a large woman who had workmates post unflattering photos of her on their Facebook profiles for ridicule. This was subsequently removed within 24 hours but any snapshot of the Internet as a whole for posterity taken in that period would store HER embarrassment into the archive. That is simply wrong. And that would be as wrong as storing other lies or rubbish written about people (particularly school children of today) for posterity. How does an archive deal with this bullying content, or does it just assume everything on the Internet is golden dust? Dare we mention issues such as the archival of pornography or criminal scams?

How dare any private citizens making an Internet archive believe they can scrape all of our children’s content for their own purpose? I’m surprised that this hasn’t been raised earlier. How secure will it be? Who will it be shared with? Why can’t these people just omit personal information from this archive as an ethical imperative? I’m lost for words.

The Traditional Garbage In / Garbage Out Problem

You should start to see a pattern here… this mass archive offers up a traditional database problem we should be aware of – GIGO (Garbage In / Garbage Out). It may sound romantic to ‘save a copy of our beloved Internet’ or any of the free social services we’ve come to exploit en masse but somebody isn’t thinking this through. Somebody is so fixated on their loss of a trivial bookmarking service and an inflated social self that they are willing to overlook privacy, data accuracy and social decency. So no, Jeremy Keith, I have no doubt that you’re a JavaScript rock star (my office bookshelf has several of your books for reference)… but on this occasion you are a misguided human being with a personal goal that I simply disagree with. Your bollocks may be well licked by the in-crowd but from my understanding of an Internet archive of everything I can only see peril and danger for the private citizens of the world.

It’s bad enough that we live in an electronic era where everything is monitored by Big Brother and the content that we’ve trusted to Facebook and other platforms will never be deleted off their servers (only from public view). To have private citizens wanting to grab that mass of spam and troll comments and everything we’ve said drunk, sober or sideways is, to my ears, repugnant. Save your own bookmarks… leave my bookmarks to die in the wilderness as fully intended when I used the service several years ago.

The Eventual Next Archive… and the Next

Which brings me to the next issue, how many times does this archival process occur? Every 12 months? Because tomorrow will have a different culture and then the year after that. Therefore multiple versions of this archive would probably be made to contain the snapshots of this Internet culture. Be sure and certain when I tell you one thing… I want and expect much of what I have online to fade away into obscurity over time. That’s the best outcome for me as a human being. Although the data is publicly available I do not believe you have the moral right to take it – much like people taking photographs through your kitchen window because they may see you from the roadway.

Yes, on the surface it does sound like a noble pursuit to archive the Internet… and what’s the harm? But just think about those important topics for a few minutes and tell me there isn’t a problem on Space Ship Adactio. He says we don’t need to sort this stuff out before it goes into the archive… damn right it needs to be sorted. If not, I hope the project gets sued out of existence sometime in the near future. By all means, save your own content for posterity. And by all means take a snapshot of certain things relevant to humanity that does not impinge on others’ rights and liberties. But don’t impinge simply because you’re technically savvy enough to do so and have lost the respect for other people’s data and privacy along the way.

I have stated a number of reasons why I find it abhorrant that we’re just talking about the difficulty of mass archiving the Internet. Pruning is key… must be key. I don’t see how any of those points amount to ‘bollocks’.

In Dmitry’s simplistic view of the architect’s design discipline the objective is to create spaces for people to use. In a sense this is entirely true; however, it is only as true as saying that a web designer’s discipline is to create web traffic for the client. So it’s worth digging into what an architect does (my partner’s son Ross Langdon is an architect in the European Union, Norway and Africa) and thinking about how their design discipline expands from that premise of creating space.

First, let’s step back a moment and ask ourselves what design is about. Problem solving. Balance. Compromise. Constraints. The definitions can bog us down so let’s just agree for the time being that design involves an iterative search for a solution to a design problem.

Enter the design discipline of architecture. To be entirely fair, architects are by far the most process driven content out designers that I’ve come across. You don’t simply put up a whole lot of bricks and mortar, chop things into a few rooms then put a sign on the door that says “Public Library”.

The good architects do a lot of research about the people and the location where a design is to be implemented. They have to understand the traffic, the culture, the alternatives, the underlying geology and geography. They have to know in advance who exactly will be moving into and out of their designs and how the physics of light and the movement of heavenly objects like the sun and the moon will affect the mood, the heating and the cooling.

Good architects work to an almost fanatical attention to detail in a rigid process that takes them from research to modelling to getting a design finalised and signed off and then implementation. And good architects do all of this in a competitive market where there are often many millions of dollars on the table, under pressure from their clients, usually not entirely in their warm office spaces and where every job risks their reputation.

In that context, the age-old design discipline of architecture has a lot to teach the infant design discipline of web design. Because, far from being about designing spaces in a vacuum, they solve problems primarily from the content out. It’s not a case where architects make pretty empty buildings… they create buildings with spaces that we can utilise for their designed purpose, within constraints and suited to their locale and culture.

Good design will always be about… well, good design.

Dmitry’s analogy of architecture as creating spaces is only half the story. In the same fashion that web designers do much more than create thoroughfares and shopping opportunities for web traffic.

To be clear, this article is by no means intended to pull away from Dmitry’s comparison of the two basic methods for designing web solutions. Without content what is there to design? I don’t know what people who create pretty boxes to populate with web content are doing but it’s probably not design as I understand the discipline.

How can anybody solve the problem without the question being asked beforehand?

Web Awards are an Industry Recognition of Best Practice

The interesting part about that link is the key ‘call to action’ that it implied in my mind as a customer sitting on the fence – the claim that awards had been won created a beautiful marketing hook. After all, branding is about perception in the mind of the market and the link dramatically moved ‘attractive site’ way up to ‘professionally attractive site’ on my business radar.

Only (and I won’t name names or flame anybody over this) there were no awards. The list under a title heading of ‘Awards & Honourable Mentions’ – One Page Love, Colorgorize, Creattica, CSS Loggia, Twitter, Design Fridge and Reddit. Not one of those are an award of any kind. And Twitter? Reddit? In reality most are user submitted galleries that showcase web designs and are run by independent people who have a priority to pump as many decent web designs across their homepage as possible to attract advertising revenue.

Real awards and honourable mentions would be handed out from the Australian Web Awards or similar calibre State or National associations that come together within the industry to assert the best work on a number of levels – including design aesthetic, business effectiveness and technical excellence.

Ethical Concerns with the Misdirecting Claim to Awards

My ethical concern about the claim – ‘I also win awards!’ – on that web designer’s site is that it is untrue. And by being untrue it denies a fundamental right of clients and customers.

The false claim of accolades denies other people their right to autonomy: to make a business decision based on the facts.

Pose the question this way. Would it be alright for all web designers to always lie about winning awards to gain customers? No. If all web designers always lied about winning awards then all awards would be devalued, all customers would be lied to and all businesses who should have achieved the work did not do so because somebody lied to the customer.

Or pose the question another way. Would it be alright if all web designers always denied everybody else their ability to make sound business decisions? No. As a maxim it doesn’t fly. If it’s not alright for everybody to do something then it’s not ethically alright for anybody to do it.

The average business person isn’t aware of the nature or drivers behind web design gallery sites. So when they make their critical (and often very expensive) decision to hire this guy as a freelance service provider they can be heavily swayed into believing at face value that this person has indeed won industry awards for his work. It’s that misrepresentation that moves such a link from mere marketing ‘spin’ into an ethical issue.

That link should read ‘featured on web design galleries and Twitter’. I am not sure where this would register with the Australian Competition and Consumer Commission… is it deceptive? Web designers still have to operate within the bounds of legal precedent and legislation – be ye warned.

To be fair, I don’t know the designer. The problem may well be that the link was hastily added and the web designer had no intention to deceive. Nevertheless, it’s a caution we should all consider when marketing our services.

Business Questions to Ask a Web Designer before Hiring

One major problem with web design is that for the most part clients find it difficult to conceptualise what we do and what final product we provide for them. On the surface, this web designer has some nice work. But it’s not peer-awarded cutting edge contemporary best practice web design as claimed in that hyperlink text. So here are a few quick questions that I’d recommend thrown into the conversation before hiring anybody for the role:

1. Do you have an ABN or ACN? What is your business structure – sole trader, partnership or company? And are you registered for GST?
2. Are you insured (because you may damage my business or destroy my data or get me sued by a third party)?
3. Who owns your business? How big is it? Where does the money go? It’s a fair question where money is involved.
4. Are you a member of any professional associations, have you won awards, do you have client testimonials that I can verify?
5. Is your business currently in financial difficulty? Again, it’s a fair question going into any financial contract.
6. Do you have a lawyer? If so, can I have their contact details for my lawyer to discuss the contract?

These questions aren’t to piss anybody off or to bully service providers. They are the questions that will get the business owner / client over that hurdle of being stuck with a self-proclaimed award winning agency that turns out to be an uninsured, unregistered, unaccredited web designer. If you lose all of your data – what then? And if you get hacked & all your client lists are compromised and lawyers are beating down your door – what then? And if the taxman drags you in because the sums don’t add up – what then?

If you aren’t satisfied with any one of the answers to those six questions then walk away and consider the value of investment in a corporate firm that can protect your business interests while providing a professional web design service. There’s nothing worse than losing your own business because the other guy bullshitted their way in the door.

But before they went down that route I’d have offered some food for thought.

Some Contracts may resemble Toilet Paper

The first point to clarify is the country the contracts apply to… where they were signed… the jurisdiction of any legal resolution – where you have to appear in court if the contract comes to a dispute.There are three major legal systems and they don’t treat contracts equally – Common Law (the British System), Civil Law (the European System) and Islamic Law. Each individual country also has it’s own business context including political risk and economic profile. And specific countries offer unique challenges to doing business that should be considered.

If the contract is Bulgarian then you might have to hire lawyers and attend hearings on specified dates in Eastern European Civil Courts.

On the other hand, if this is an Australian contract then how do you force the Bulgarian web design firm to appear on a given date in the appropriate court in Sydney? And how do you force them to adhere to the Australian court’s judgement? If you were awarded AUD$20,000 damages then how would you enforce that fine in Bulgaria? Or African or Middle Eastern countries? Or the United States where you might be sued on that contract, have to fly to appear with US lawyers and fight an extended and expensive legal battle with huge monetary consequences if you lose.

Were you to have a legal contract with an Indian firm… any court would take between 10 and 20 years to hear the case due to stress on the Indian legal system. You may never see a resolution.

The bottom line is that a contract you can’t enforce or that has you at such a disadvantage is worse than toilet paper to your business. It might lead to your being sued in a foreign country under a different legal system and possibly in another language.

Client Privacy and Security Concerns in a Wire Canoe

The next consideration has to be privacy and security. Were you to send client data (ie. access to database content or client files) to another country then THAT COUNTRY determines the appropriate privacy laws and enforcement. This was true when Telstra sent all of our Australian accounts offshore to Indian call centres exposing their customer base to increased identity theft. If the Bulgarian web firm stole and misused this customer data then it could kill your business.

At the same time the entire infrastructure of the online business is exposed to an overseas business entity that, let’s be honest, you really don’t know anything about. What are their business motivations and relationships? Have they used black hat search engine optimisation techniques? Did they insert malicious code? Are your website visitors going to be installing malware under your name? These cheaper Bulgarian web designers are being provided access to your passwords, file structure, email accounts and sensitive information.

If that isn’t bad enough – what are the consequences if they betray your trust? You could go out of business. You may have no financial capacity to recoup the loss or pay for the damages out of your own pocket. Just as any 60 year old pervert can say they are a 12 year old girl in an Internet chat room… anybody can tell you they run a web design business in Bulgaria.

A Dollar Spent Elsewhere doesn’t turn the Merry-go-round

Believe me, I’ve got an MBA and understand the ideals of globalisation and free trade as much as the next guy. But the reality is that by chasing the budget option off-shore there are hundreds or a few thousand dollars no longer circulating in your local community. That’s a bigger deal than it sounds.

When you spend dollars at the local grocer to buy milk then the grocer can buy shoes for his child and the dairy farmer can buy the newspaper. In turn the shoe seller and the newspaper seller receive their portions of that dollar and can buy goods they need or want for their families. Money isn’t a one-time transaction, it continually renews itself through a community increasing the social value of it’s footprint. Not investing in local talent is shooting your community in the foot – less money attracted for business investment, less money for schools and infrastructure, less money for the merry-go-round of opportunity for your own children.

Because what looks like a good deal – getting somebody to work at $5 per hour – is at the heart of it exploitative anyway. It’s no different than a large company moving production to India to avoid labour laws or safety regulations.

I’m not saying never to outsource overseas… but do it for the right reasons and be prepared to pay the appropriate value for their work. Make that decision with an understanding of the inherent business risk that comes with the decision.

There’s a saying in business – “There’s no such thing as a free lunch.” Whatever decision you make about your web design services be prepared to grab your wallet.

The Danger of Percentages as a Fudging Mechanism

In the Yahoo! article Nicholas Zakas calls it how it is – 1.5 per cent of web traffic is a whopping number in real figures and any web designer ignoring 1.5 per cent needs to be cautioned. There will always be significant groups with JavaScript disabled and the answer, of course, is in progressive enhancement – building a website that works for the lowest common denominator then enhancing that website with JavaScript and fuller features.

Some, including Richard Shepherd on Smashing Magazine, will call this 1.5 per cent out as the insignificant other part of web traffic that your business can forget. In that perspective, if you were offered 98.5 per cent of an apple pie (small or large) it may feel like you got to eat it all. Unfortunately 98.5 per cent of web traffic is a far cry from 100 per cent.

The problem emanates from the inability of percentages to impart comparative meaning. It becomes about apples and oranges. And when percentages become less than around 12 per cent we have a human tendency to fudge this under the umbrella of it being hardly anybody at all. A trivial amount.

So the first thing is to understand that 98.5 per cent of a pie does not equal 98.5 per cent of web users does not equal 98.5 per cent of a unit mark in a university exam for computer science.

Percentages without Context are Vacuous

Percentages used in this context become vacuous fudging mechanisms for conversations that need hard numbers. This is exactly what Nicholas Zakas pushes in his Yahoo! article:

The second takeaway is that JavaScript-disabled users exist. While 2% of U.S. visitors may not seem like a lot, keep in mind that over 300 million users visit the Yahoo! homepage each month. That means 6 million users visit each month without the benefit of JavaScript. So even though it’s worth spending your time on the JavaScript-enabled version of the site, there are still a non-trivial amount of users out there who won’t be able to use it.Nicholas Zakas – Yahoo!

The over-arching sense we can pull from that 1.5 per cent of website visitors with JavaScript disabled is provided through context – linking the percentage with hard numbers. Without that linkage any percentage provided to forward any argument in any conversation is vacuous huff-puffery. Percentages without context are the realm of Snake-Oil salesman and red-cheeked barristers addressing juries.

Which is exactly why Richard Shepherd’s justification for JavaScript reliant development based on 1.5 per cent of web traffic being inconsequential – hell, we’re nearly all going to experience it with JavaScript enabled – raised my alarm bells. All the signs of a Snake Oil salesman.

Yes, many readers may reach the Yahoo! article by following that link but I can pretty much say that I was surprised when I did read both articles because Yahoo! and Shepherd have diametrically opposed ideas of what 1.5 per cent of web traffic means. I am left to wonder if Shepherd read past the first paragraph or he simply failed to grasp the underlying message?

The 1.5 per cent JavaScript disabled are Significant

I concede that any business has the right to close it’s doors to a segment of customers because they don’t feel it economically worthwhile to address that segment’s need. It’s a cold hard cash business decision about return on investment. However, this is more about the have-it-all-now philosophy demanding fuller featured applications for those 98.5 per cent of the market capable of being reached with current technologies.

I find it concerning to silently witness catch-cries that 1.5 per cent of web traffic is almost zero and that the separation of content from presentation from behaviour layers have somehow become irrelevant. Niels Matthijs article on CSS efficiency being inefficient is well worth a read, if you have time. He shares the same concerns about the lost rationale of best practice.

Would I recommend developing the global navigation of any website or application… or a shopping cart or other mission critical feature… as JavaScript reliant without graceful degradation for that 1.5 per cent? No.

The conversation reminds me of the bad old days of DHTML… but maybe I’m just an old guy with an axe to grind. All I’m saying is pay attention to what percentages mean within the context of the conversation AND choose your tools wisely. Just because a chainsaw cuts faster than a butter-knife don’t take it to every block of cheese out there. Sometimes, just sometimes, a butter-knife is the perfect tool for the job because of it’s inherent constraints.