Social Media and the Law

SOCIALMEDIA

LAW &

What is social media?

Rule of thumb:

If you don’t use it, don’t practice it.

Becoming a Digital Citizen

We are beta testing the global power of the social web.

We are in the alpha phase with the law and how it will manage, shape and react to the social web.

social media......yea

How to Effectively Use Social Media as a Lawyer

Twitter Issues:

Trademark

Abuse Issues- Unwanted Interaction

The 140 Character Attorney-Client Relationship

Following the Right People

Sharing Relevant Information

Attracting Clients Without Giving Counsel

Tumblr/Blog Issues:

The Comment Roll (Troll)

Co-Blogging Issues (Copyright)

Consistency of Useful Content

Quora Issues:

Answering direct legal advice questions

Disclaiming your interaction on the site

Facebook Issues:

Trademark

Copyright

Likes, Comments, Pokes

talking about my reputation

What You Can and Can’t Do With Online Reviews

Defamation.

The “Case”:

Review about Legal Eagle, Esq.

- “undereducated”- “ill prepared”- “exorbitant cost”

You cannot sue over opinions.

Better question: Do you want to sue?

(especially in California)

ANTI-SLAPP laws

ANTI-SLAPP laws

Alternatives

the game plan

How to Effectively Use Social Media as a Lawyer

Tips for Using Social Media Wisely

Designate someone to manage social media

Decide who does and doesn’t get to use it

Maintain a schedule

Make it a habit, something you enjoy

Tips for Monitoring Employee Social Media Use Legally

NLRB Decisions

Apply offline principles to the online world


There is no federal law that specifically prohibits employers from monitoring employee social media use.


Issues arise with the time and place of the social media use, personal v. firm accounts.


Employer Phones

Personal Phones

Employer Computers

Personal Accounts


Recent Cases

Stengart v. Loving Care Agency (2010)

Holmes v. Petrovich Development Company LLC (2011)

Sitton v. Print Direction, Inc. (2011)

uncharted legal territory

Privacy

Distinguishing Fourth Amendment from privacy in the civil sense.

Electronic Communications Privacy Act

Personally Identifiable Information (Pii)

“Personally identifiable information” is information that identifies a particular person. “Pii” includes:

• Full name;• National identification number;• IP address;• Vehicle registration plate number;• Driver’s license number;• Face;• Fingerprints;• Handwriting;• Credit card numbers;• Digital identity;• Date of birth;• Birthplace; and • Genetic information.

Data collection:

Obvious v. Inferential

social networking platforms = corporate-created legal regimes

Privacy

Problem #1: The laws around data reside in industry silos.

Problem #2: They aren’t getting it in DC.

Silicon Valley, Alley, Beach > DC

Ok, I do have some <3 for the FTC.

Problem #3: This isn’t going away.

Privacy policies and practices in their current incarnation are not working.

Geolocation

Recent Supreme Court Development:

United States v. Jones

regulation...or attempts thereof

Privacy

Few pieces of key legislation:

Do Not Track Act

Commercial Privacy Bill of Rights Act of 2011

Personal Data Privacy and Security Act

Secure and Fortify Electronics Data Act (SAFE)

Data Security and Breach Notification Act

FTC Action

Opting Out = ScanScout

Children’s Privacy = SkidKids

Regulation stymies innovation and economic growth.

Self Regulation stymies innovation and economic growth.

Voluntary implementation just seems smart and frankly less cumbersome than a federal or state-by-state legal regime.

We can work to create a marketplace that rewards “privacy by design” while promoting innovation.

commercial issues

Blogging

FTC Disclosure Rules

5 Quick Tips Overview

Testimonials with atypical results - must disclose what is normally expected

Bloggers who are paid to make endorsements must disclose it

Must disclose connections between research & advertiser if using a research report

Paid endorsements deceptive if they make false or misleading claims.

Advertisers & endorsers liable for false or unsubstantiated claims

avoiding “Oh S**t moments” (or advising clients through them)

Liability Issues &Social Media

Two behemoth laws regulate user-generated content: the DMCA and the CDA.

DMCA = Intellectual Property

CDA = Defamatory Content

Both laws stem from the need to provide some shield to ISP’s from the actions of their users.

DMCA = Intellectual Property

Safe Harbors

512(a)- Safe harbor “for infringement of copyright by reason of the [ISP’s] transmitting, routing, or providing connections for” infringing material.

512(b) – Safe harbor that provides immunity for system caching

512(c)- Safe harbor that provides immunity for information residing on the ISP’s systems at the direction of users

512(d)- Safe harbor that provides immunity for information location tools such as search engines.

Names you have probably heard associated with the DMCA:

YouTube

BitTorrent

The Pirate Bay

When the law gets complex:

Sampling and Mashups

CDA = Defamatory Content (generally)

Section 230 of the Communications Decency Act

General Rule:

If a website is involved in any way in the creation or development of the information, they will likely be considered an “information content provider.” These opens them to liability.

Cases

Fraley v. Facebook, Inc.

Zango v. Kapersky Lab

Doe v. MySpace

Cybersecurity

Cybersecurity

Data Breach

State Level Compliance

Federal Regulation

Regulatory Efforts by White House and Dept. of Defense

Federal Regulation

Computer Fraud and Abuse Act (CFAA)

Perpetrating crimes on a computer

Minors

Minors

Children’s Online Privacy Protection Act

“Cyber” Bullying

Binding Contracts


Requires websites to get parental consent before collecting or sharing info for children under 13

Enforced by the Federal Trade Commission

Applies to commercial websites and other online services

If you know you have minors on your site, close the accounts


Regulates all types of identifying information

Exemptions: electronic postcards, contests, online newsletters, homework help

Example: Disney’s Club Penguin

If you know you have minors on your site, close the accounts


To comply:

Post a privacy policy/advise whenever personal information collected

Parental notice, consent, access to information

Can’t condition participation on providing more info

Confidentiality & security of information collected from children


Definition:

Use of the Internet and other technologies to harm other people through deliberate, repeated and hostile behavior


Legislative Attempts in CA:

AB 9 “Seth’s Law”

AB 1156 Definition of Bullying

AB 746 Student Behavior on SNS Sites

SB 719 Bullying Prevention for School Safety and Crime Reduction Act of 2003

AB 86 (2008 Code) Pupil Safety


Supreme Court Declines Intervening:

Metes and bounds of school’s authority in these situations

Binding Contracts

So many contracts online & so many minors

stay outta trouble

Ethical Issues for Attorneys

ETHICS!

Attorney-Client Relationship Formation

Client Confidentiality

Trial Publicity

Fee Splitting Using Crowdsourced Services

Cloud Storage of Client Files

Ex Parte Communications

ETHICS!

Relationships Online with Judges

Relationships Online with Jurors

What’s Discoverable Online

ETHICS! Attorney-Client Relationship Formation

Accidental Clients- When does someone become a prospective client?

ABA Rule 1.18 - Prospective Clients

ETHICS! Client Confidentiality

CA Evidence Code Section 950

ABA Rule 1.18 - discussions with prospective clients are confidential

Both of these issues can be solved by website disclaimers - California Formal Op. no. 2005-168

ETHICS! Trial Publicity

California Rule of Professional Conduct 5-120“Extrajudicial Statements”

Avoiding prejudicial effects

Don’t say anything you wouldn’t in a phone call or press release

ETHICS! Fee Splitting Using Crowdsourced Services

CRPC 1-320 - Can directly or indirectly split fees with a non-lawyer

Can be part of a lawyer referral service

Terms of Use Rule- Obligation on You

ABA Rules Implicated: 1.18, 5.5, 7.1, 7.4

ETHICS! Cloud Storage of Client Files

Defined: Shared Pool of Storage Resources Hosted Online

If these services are compromised, you are compromising your clients confidential information

ETHICS! Ex Parte Communications

Rule 5-300 - Contact with Officials

On a case, social media use being considered ex parte communication

(Judge Brown follows you on Twitter)

ETHICS! Relationships Online with Judges

Judges involvement limited in online social networking communities

No rule barring it, but the “appearance of impropriety” appears

Check California Judicial Ethics Commission Opinions

ETHICS! Relationships Online with Jurors

Rule 5-320 - You are barred from having contact with your jurors

It’s no different on Twitter & Facebook.

Sleuthing through “old high school friends” profiles

ETHICS! What’s Discoverable Online

Social Media profiles are fair game

But how you access them could be an issue

We just scratched the surface.

Lawyer

Christina Gagnier@[email protected]

mailto:[email protected]

mailto:[email protected]

SOCIALMEDIA

LAW &

Social Media and the Law

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