An examination of life as an in-house TMT lawyer
“I have worked in the TMT sector for 21 years and have never wanted to leave.” That reflection seems to sum up how a number of senior legal counsel in the technology, media and telecommunications (TMT) space feel about their work.
Just over three years ago, Lawyers Weekly reported that TMT lawyers were in great demand in private practice, for reason that the rise of digital disruption was resulting in the skyrocketing in value of legal professionals with relevant expertise. Numerous BigLaw firms noted, at the time, that they were looking for such lawyers in order to bolster their service offerings.
In just three short years, the TMT landscape has shifted dramatically with the advent of new-age technologies, increasing global concerns about the place and role of media – particularly social media – in the modern world as well as connectivity remaining a political football. And, most significantly, the regulatory environment looks vastly different to even one year ago, with new laws surrounding data retention influencing how legal professionals from Europe to Australia go about their business.
It is perhaps because of these consequential parameters that in-house lawyers so enjoy day-to-day work in this space.
To get a better insight into life in the TMT space, Lawyers Weekly spoke with Vodafone Australia general counsel and company secretary Trent Czinner, Telstra general counsel Craig Emery, amaysim general counsel chief strategy officer and general counsel Alex Feldman, Optus deputy general counsel Shanti Berggren and nbn senior legal counsel Jessica Norgard.
Mr Czinner says that the TMT sector is ever-changing and provides new challenges each and every day: “I have worked in the TMT sector for 21 years and have never wanted to leave,” he submitted.
“Most TMT companies are pushing the boundaries of technology and dealing with constant changes to laws and regulatory interventions. I enjoy working with technologies that we rely on more and more to run our lives. You are also occasionally part of a team that is first in the world to launch something,” he mused.
“It's hard to believe now, but in 2007 I spent a week in Palo Alto and negotiated a contract with Facebook so the company I worked for could develop the first Facebook mobile app for our phones. At the time Facebook was only on web browsers and had no mobile app development plans.”
As a 13-year veteran of the sector, Mr Emery says that he still finds work in the space to be “endlessly interesting” on a number of levels.
“The work is both deep and broad at the same time, which means it caters to those who are looking to develop very deep domain expertise, and also those who, like me, prefer a lot of breadth in the types of work they do and issues they are asked to consider,” he reflected.
“Personally, being a TMT lawyer in-house has allowed me to live and work overseas, and to advise on issues as diverse as consumer protection law all the way through to corporate governance. I’ve been in-house in TMT for 13 years now and I’m still being exposed to new, novel and intellectually challenging issues, which is what I look for in a role.”
For Ms Berggren, the first word that pops into her mind when describing life in-house as a TMT lawyer is “challenging” – but she doesn’t say that like it’s a bad thing.
“Working in-house in the TMT space is fast-paced, stimulating, thought-provoking, inspiring and exciting. TMT is a space that touches so many aspects of our everyday lives – it is very personal to me! I work with professionals who are future-focused, and we challenge each other intellectually; just because we have the technology to do something doesn’t mean we should,” she recounted.
“I have gone through my own journey in this space getting my head around the improvements to our lives that only technology can bring – it delivers so much for us – technology is our instant navigator, investigator, entertainer, matchmaker… but, I wonder how good we are at setting boundaries. The role of lawyers in this space and especially in an in-house environment is to raise issues that enable respectful relationships between ourselves and all of the benefits that come from the products and services of TMT.”
How to succeed in this space
For senior in-house counsel in the TMT space, success is synonymous with teamwork. This, Mr Feldman advises, is what companies in the sector are looking for: driven, fiercely intelligent people who gel with the company culture.
“Some of the other characteristics which we’d look for [at amaysim] are: being open-minded, being happy to work in a fast-paced and agile environment, comfortable with ambiguity and change and a great sense of humour,” he espoused.
“We don’t think of the legal team as operating ‘with the rest of the business’. Our legal team is part of the business and drives the business as much, if not more, than the business drives the legal team. The nirvana is a complete blur between what we’d previously have described as ‘commercial’ functions and the legal function.
Another key trait to adhere to is “commerciality”, Ms Norgard added, saying that in a TMT team, “we are all on the same side, trying to achieve a common goal. So, it’s about being able to help guide the business – through legal advice – as to different ways to achieve the goal”.
Mr Czinner’s reflections support this, with him noting that TMT teams have to be “fully engaged in the success” of the company and believe in its purpose.
“In-house lawyers also need to be empathetic to challenges faced by their business colleagues. A passion for your products and technology, and an understanding of how they work, is also essential. When dealing with novel or tricky issues it takes many minds across the business to find a way through and lawyers are a big part of that process. In those situations, the best in-house lawyers have a strong ability to make good risk-based decisions but they also know when it’s appropriate to say ‘no’ and bring out their inner black-letter lawyer. In an environment where legal decisions are being made constantly, it’s important to have a process to quickly escalate decision-making so lawyers don't feel out on a limb,” he said.
Technological advancements, Mr Emery submits, are key to such success at the team level, with in-house counsel needing to take advantage of the opportunities such tech can afford.
“To successfully function requires in-house teams to ruthlessly assess what they do, making sure they focus where they add the most value. They also need to avoid becoming experts at complex administrative work. Lawyers are well-qualified to do this but when it becomes the main thing they do, it deprives the organisation of the true value of having an in-house legal team, which is high-quality advice combined with deep commercial acumen and awareness of the risk posture of the organisation,” he said.
When asked about challenges, the first thing all interviewees pointed to was regulation. In TMT, Mr Czinner outlines, the legal and regulatory team is on deck at the outset to help shape any new regulation along with the rest of the industry.
“Sometimes those changes don’t reflect how things operate but usually we can ensure that they do. Often, we need to make decisions based on what we believe is the right thing even when the law is not clear. Most of the time we get this right but occasionally we may be challenged and need to adjust how we are doing things,” he said.
Then it comes to aiding clients through the new regulation that has been implemented. And, as Ms Norgard explained, this sector is “highly regulated and complex”, meaning navigation can be tricky.
“There are always challenges with the law keeping up with the ever-changing technology landscape. It’s been interesting to see law reform discussion about emerging areas like AI, existing areas like digital platforms, and more traditional areas like defamation and how it fits in the technology age. From a [lawyer’s] perspective, the biggest challenge is trying to keep up with all the change and pace of new developments!” she said.
Such challenges, Mr Feldman said, mean that the biggest challenge facing in-house counsel in this space is simply keeping pace.
“Lawyers need to be more agile, more commercial and more pragmatic than ever before. The way to handle this is to embrace the ever-changing landscape and to get excited about future possibilities. At a more practical level, I find that reading about other professions, sectors and economies really helps take the mind out of the ‘day-to-day’ grind,” he suggested.
But, he added, transparent communication is paramount in order to keep pace.
“We’re very open in our relationships with regulators and are always on the front foot. We engage in frank and open dialogue and find that perseverance really helps.”
When asked about how TMT in-house lawyers can approach such challenges, Mr Emery said, “not without some difficulty”.
“However – and at the risk of oversimplifying a complex topic – when your mindset is ‘what is the right thing for my company to do’ rather than ‘what can we legally get away with’, so much of the complexity that can exist in the legal and regulatory landscape falls away,” he said.
“The old adage of ‘would this look okay if it was on the front page of the paper’ remains very true, and in my experience, when what you’re proposing to do would pass this test, it is generally going to meet legal and regulatory requirements, no matter how complex.”
For Ms Berggren, keeping pace means going back to basic principles: identifying who are the “end customers” and understanding what they expect from the service provider and appreciating how the actions of the law department will optimise or diminish that customer experience.
“If you focus on the customer first and work your way from there through the legislative and regulatory landscape, you will largely be okay. Technology will outpace almost all of our preconceived notions of doing things,” she explained.
“For instance, I shop online (or at an airport) but would never have thought this was something I would do growing up. Of course, the law is not going to keep up so our best chance of doing the right thing is to navigate by way of improving the customer experience.”
Consumer Data Right, GDPR and other issues
Further to the broader regulatory considerations, the introduction and manifestation of the Consumer Data Right and the General Data Protection Regulation, in 2017 and 2018 respectively, are on the minds of corporate TMT counsel.
The former is the “next big change” for legal professionals in this space, Mr Feldman identifies, noting that he and other lawyers are eager to learn from the early experiences of the financial services industry.
Mr Emery agreed, saying there are “both lessons and opportunities” for Australian businesses in this context.
“The most telling for me stems from the mindset organisations take to data privacy. Those who see it as just another compliance obligation are destined to miss out on the opportunity that comes from making it a core part of the value proposition,” he said.
On the topic of GDPR legislation in the European Union, and its prospective impact upon the ways in which Australian businesses conduct themselves, he says: “The importance of individuals having control over their data and the recognition that it is a valuable asset is coming through in most enhancements you see to privacy frameworks, both here and overseas”. This, he mused, may not necessarily be specific or unique to GDPR.
For others in this space, however, there is much to learn from the European legislation – Ms Berggren said it has “shone a light”, in the past year, on how data is used, particularly by third-party companies.
“Data use requires prudent classification, identification, mapping and monitoring. The European regulation impacts Australia by giving support to the emphasising the importance of compliance: looking at the regulations and legislation that [govern] the way we use data, what internal policies, processes and protocols do we have in place to support regulation and legislation and finally and – in my view most importantly – how will we bring the stuff on paper and in powerpoint presentations to life,” she proclaimed.
Mr Czinner hypothesised that, regardless of the impact of GDPR on Australian businesses, global privacy laws will continue to align.
“The amount of data now being captured and retained by digital platforms is extraordinary and privacy laws will need to evolve. The recent ACCC digital platform enquiry proposed some changes along those lines that are more closely aligned to GDPR,” he noted.
Opportunities on the horizon
Mr Emery highlighted that, “at its heart”, TMT work in-house seeks to keep people and communities connected to each other.
“When you couple what I think is a pretty noble aspiration with a moment in time that sees the convergence of technologies like AI, robotics, quantum computing, the Internet of Things and 5G, you’re pretty much guaranteed an interesting existence!” he said.
“The opportunities in TMT range from the traditional in-house legal roles, with telecommunications companies, broadcasters, software businesses and e-commerce providers, through to roles in emerging sectors. This includes in the legal technology space, which I think presents unique and incredibly interesting opportunities for lawyers to parlay their legal training into an emerging and dynamic subset of TMT,” he said.
Ms Berggren made a similar point, stressing how exciting such work is because “it deals with the everyday”.
“It seems ironic, because you might wonder how the everyday could be exciting, but the everyday is something you can influence and that is quietly thrilling. I will never forget sitting down in our Yes Agency at Optus and watching the Women’s World Cup after it had been through the legal rigours and before it went live – it gave me goosebumps,” she recalled.
“Being part of the Optus team – who were so genuinely passionate about women and women’s sport in Australia – is not an experience you can easily top. It is a wonderful example of TMT influencing the social landscape in driving a positive rebalance of gender representation in sport.”
Mr Feldman offered advice in two parts for aspiring in-house TMT lawyers: firstly, one should think about whether the macro trends in the sector are enticing, and secondly, find a business in that sector which has a culture compatible to your needs.
“There are lots of companies out there and each has a very different culture and vibe. I absolutely subscribe to the view that culture eats strategy for breakfast! In terms of the TMT sector, I’m particularly interested by the impact of 5G – my prediction is that, in time, it’ll be huge. I expect this to be the single biggest network change which we’ve experienced and most of the future use cases (which will be obvious in years to come) haven’t even been invented yet!”
For those coming through the ranks, Ms Norgard offered three pieces of advice: “One, run your own race. This is easier said than done, but remember that everyone has their own strengths, influences, passions and there isn’t necessarily one right path for everyone. Two, look after yourself and those around you. At nbn we have a value called #wecare, which I think is very important to having a happy, healthy team. And three, communication is key – most things can be managed by having good communication skills!”
Amid all the present-day challenges to be traversed, TMT counsel must also be keeping an eye on the future. This eye has much to survey, according to our interviewees, encapsulating the breadth of what is to come.
In short, however, it can be said that there are a multitude of shifts already happening and still to happen, and professional and practical skills will have to adapt in accordance with such movement.
Mr Emery posited: “The standards expected of corporates, both here and overseas, [are] getting increasingly higher and this presents both challenge and opportunity for in-house lawyers, who play an important role in helping organisations make good decisions where risk is well-understood and given appropriate weight. That said, the modern perception of an organisation is not just measured by whether they follow the law, and I see the role being expected of in-house counsel shifting from ‘do the legal work well and keep me out of jail’ to one where the very best will combine not just excellent legal skill and commercial acumen, but also a high degree of political savvy and awareness of public perception.”
“I believe in-house lawyers need to be aware of this shift and be ready to develop their skills in order to respond.”
Ms Berggren’s crystal ball gazing provided a warning about the trappings of technology, as she proffered a perhaps ironic, albeit learned, caution about not falling victim to the technological advancements that in-house counsel in this space have worked so hard to support.
“We are quickly realising the dream of the connected world and creating the terms and conditions to make this possible but we need to take a conscious break or regular shorter breaks to reflect and consider whether those terms and the rules of engagement remain workable and respectful,” she said.
Mr Czinner supports this. There is also a need for the focus on the human aspects of day-to-day work in-house for TMT lawyers, he espouses, as such counsel are “now a big part” of the industry, he says, with those in-house driving consequential change across the board.
Perhaps by virtue of this, he continued, law teams suffer just as much from the rigours of legal practice and ensuring the right balance can be struck – both at an individual and institutional level – is critical.
“Companies are placing more importance on culture, diversity and flexibility. In fact, technology has been a catalyst for flexibility because our phones and tablets are always beside us and we look at them hundreds of times a day. At 9:00pm, we may be looking at something social one minute and answering a work email the next,” he recounted.
“In my opinion each person needs to work out how to find balance and flexibility (going in late after a late night of work, or working from home occasionally to avoid hours of wasted time commuting) and managers need to look at the big picture and long term and not when people are in the office.”
Such wellness considerations will, no doubt, have to be factored in if the aforementioned practical and professional shifts are also be adhered to.
“It’s incredible how many interesting and varied things I get to work on (sometimes all in one day!),” Ms Norgard tells us. There truly is never a dull moment for in-house counsel in this space, all of our interviewees assure us, and – with all of the technological, regulatory, marketplace and sociocultural evolutions still to come, the work for legal professionals in this space can only get more intriguing, albeit challenging.
Ultimately, Ms Berggren summed it up best when musing about legal professionals being at the forefront of the changes to come: “I believe in the benefits which technology brings us and the role lawyers have in ensuring a measured, respectful delivery of benefits. Excitement – plus discipline – will result in amazing benefits.”