The Practicing Lawyer’s Guide to Social Media

John Lipsey

Vice President, Corporate Counsel Services

Session Outline

• Social Networking Trends• Lawyers & Social Media• User generated Content – What you Can (and

can’t) Do with it?• Emerging Legal Issues: Discover, IP and More• Social Media Policies• Q&A

Why Lawyers Should Care: Social Media’s Footprint

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Social Media Growth Among Users

• Social network and blogging sites are now the fourth most popular activity on the Internet

• ‘Member Communities’ now reach over 5 percentage points more of the Internet population than it did a year ago – twice the growth rate of other sectors.

• People under 18 years old are making up less of the social network and blogging audience, whereas the 50+ age group are accounting for more of the audience.

Source: Global Faces and Networked PlacesA Nielsen report on Social Networking’sNew Global Footprint, March 2009

Social Media Use Grows for F500 Companies

• 22% of F500 companies have blogs

• 35% Tweet as part of a corporate program

• 19% host podcasts• 31% enhance blogs

with video

Source: The Fortune 500 and Social Media: A Longitudinal Study of Blogging and Twitter Usage by America’s Largest Companies, Conducted By: Nora Ganim Barnes, Ph.D., Eric Mattson CEO, Financial Insite, Umass Dartmouth, http://www.umassd.edu/cmr/studiesresearch/2009f500.cfm

Social Media Predictions

• By 2014, social networking services will replace email for 20 percent of business users.

• By 2012, over 50 percent of enterprises will use Twitter or similar Microblogging services

Source: Gartner Group, 2010, http://www.gartner.com/it/page.jsp?id=1293114

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LAWYERS & SOCIAL MEDIAHow lawyers are using social media

% Yes

Question: Are you a member of an online social network such as LinkedIn, Plaxo, Facebook, Xing or MySpace?

% Yes2008

2009

Age

Are You A Member of an Online Social Network?

Counsels’ Use of Online Social Networks Is Expanding Rapidly

Both Corporate and Outside Counsel are significantly more likely to report being a member of an online social network this year as compared to last year

Approximately three quarters of counsel now report being a member of such a network Growth in online network use is seen across all age groups

NCC: 710OC: 764 Leader Networks (c) 2009

9

Question: Would you be interested in joining an online professional network designed specifically for lawyers?

2008

2009

% Yes

Age

Response by Role

NOTE: Response Options Changed in 2009 from Yes/No/Don’t Know to Yes/No/Already Belong

Lawyers Are Significantly More Interested in a Private Legal Network

• 24% increase in corporate counsel interest; 18% increase in interest in private practice lawyers

• Also growth in “No Interest” suggesting counsel are more educated on these networks and are taking a position

• Growing trend in 2009: Counsel are beginning to join legal-only professional networks

• There has been an Increase in the percent interested across all age groups

Leader Networks (c) 2009

NCC: 710OC: 764

10

Corporate Counsel

Question: What do you think are the top advantages of participating in an online legal professional network? Select up to three.

Note: Item names have been shortened for display purposes

10Leader Networks (c) 2009

NCC: 710OC: 764

Corporate Counsel Cite Low Costs And Increased Visibility Among Peers as Primary Reasons to Network Online

Primary Professional Networking Activities for Lawyers

Utilizing Online Legal Business Tools• Preferred provider management

• Integrated search• Client ratings

•Alerts•Feeds•Scans

1. Listening

•Join an appropriate community•Create a basic profile•Connect with others•Ratings and rankings•Blog comments•Discussions & groups•Questions & answers

2. Collaborating •Enhance your profile•Blogs•Podcasts•Photos & videos•Social bookmarking

3. Showcasing

With Whom Do Lawyers Engage Online? It Depends on Objectives…

• Public Groups and Forums are exposed to entire online community, and often to the Open Web through Search Engines

• Lawyers seeking a more private experience can create or join private and/or confidential Groups

• Find “Relevant” Colleagues– Common interests– Narrow peer groups into smaller, more

focused clusters – Enables “deep dives” into subject matter

with trusted colleagues• Groups are Focused & Intimate

– Introduce yourself to the group and offer brief background

– Participate frequently and offer ideas, questions and insights

– Be helpful and pro-active

Personal Data at Risk on Public Social Networks?

• Facebook: Dec., 2009, FTC Complaint for unfair and deceptive trade practices targeting FB’s most recent changes to privacy policy• Grievances include:

• Changes in “publicly available information”

• Private information disclosure to application developers without user consent

• Google Buzz: Facing public outcry and multiple lawsuits for default settings for members that expose private data such as gmail contacts and Picassa photos

• Takeaway: Privacy concerns of members can conflict with public social networks’ need to grow… grow… grow

…Advice for Risk Averse Lawyers? Choose Your Network Wisely

Be on the look out when:• The site allows legal advice to be offered

• The site’s Terms and Conditions do not respect your privacy, or will sell or rent your contact information

• The company or entity creating the site is vague or unidentified

• The Site allows solicitation and spamming

• There is no authentication process following a registration to ensure member identity

• The site allows anonymity

• The site lacks robust privacy and communications settings

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Is Social Networking Ethical?

3 General Categories of activities ethics rules apply to: • Communication: ABA Model Rules

Rule of Professional Conduct 7.1 prohibits false or misleading communication about the lawyer or his services • How lawyers present themselves and their capabilities via their

profiles & online interactivity could trigger this rule• Solicitation: the ABA's model rule 7.3 prohibits, among

other things, real-time electronic contact to solicit professional employment from a prospective client…• Does participating in forums, blogs and other communication

rise to that activity when there is no overt solicitation? Or is it just an extension of traditional networking?

• Advertisement: ABA Model rule 7.2 regulates lawyer advertising.• Are LinkedIn “testimonials” advertisements under the rule? (ie

California prohibits unless such communication also contains an express disclaimer)

• States are widely varied in their advertising rules

Source: Mind the Ethics of Online Networking, By C.C. Holland, Special to Law.com, November 6, 2007

Lawyers: To Friend or Not To Friend

• Generally you may “friend” anyone• Exceptions when special relationships:

• Judges – No Concensus• Florida , No – could appear to public that judges

may be influenced by their online friends• SC, Yes – judges should not be “isolated “ from the

community• Employees – Issues to be aware of…

• Harassment, discrimination, wrongful termination, favoritism

• You could learn something about your employee you don’t want to, or shouldn’t know

• Witnesses (Can’t use deceptive practices to friend a defense witness)

• Defendant (Lawyer stepped down when revealed that he had online relationship with defendant in pending matter)

Is Your Tweet a Testimonial?

New FTC Guidelines established in December, 2009, covering Endorsements and Testimonials– 16 CFR Sec. 255• Endorsements must reflect the

beliefs or opinion of the endorser and can’t be deceptive

• Endorser must be bona fide user• Paid or other relationship between

seller and endorser must be disclosed

• You must monitor conversation to clear up any misunderstandings that arise

Serena WIlliams

e-Misbehavin’ – Trial by Facebook….and Google and Twitter

• Magistrate in England who got in trouble for tweeting about his cases

• Criminal conviction set aside when juror was found to be blogging about the trial, during the trial

• Mistrial results in Florida when Jurors admitted to doing research on the case during the trial.

• Assistant Public Defender loses her job after referring to jurist as “Judge Clueless,” among other indiscreet blog postings

• Mistrial in a commercial fraud case when the Plaintiff was caught sending text messages to the witness

• Convict seeks new trial over prosecutor’s Facebook entrieshttp://www.astcweb.org/public/publication/article.cfm/1/21/6/Why-Jurors-Turn-to-the-Internet

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Enough is Enough: Judicial Conference of the US Proposes New Model Jury Instructions

• Committee on Court Administration and Case Management of the US Judicial Conference

• Proposed in December, 2009

• State courts are also grappling with this issue and slowly adopting their own rules. See Florida.

http://www.wired.com/images_blogs/threatlevel/2010/02/juryinstructions.pdf

…You may not communicate with anyone about the case on your cell phone,through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networkingwebsites, including Facebook, My Space, LinkedIn, and YouTube….

Are Tweeting & Blogging Allowed in Your Courtroom?

• Check the local rules of the courthouse and/or jurisdiction in question.

• Check the court's standing orders, free-standing electronic device policies, and the judge's individual preferences.

• If no information is found, look for information on whom to contact with questions

• Contact the judge and/or the judge's staff.• Federal Criminal Proceedings

• Georgia Federal District Court Ruling Interpreted Rule 53 of the Fed. Rules of Civ. Pro. Prohibiting courtroom reporting to Include Tweeting.Source: Live Blogging & Tweeting From Court, Citizens Law Media Project, Dec 10, 2009

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Proof of Service Facebook-Style

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• Courts increasingly willing to accept service through Facebook when other methods fail• Rule 116(1) Austr. Uniform Civ Pro. Rules

permit substituted service including social media sites

• Canada permitted substituted service to Defendant’s former employer and Facebook page

• UK Court permitted injunction against anonymous blogger impersonating prominent british lawyer/blogger Donal Blaney.

• No US courts have followed yet.. but likely• How to prove recipient uses services and

therefore was actually served?• Is notice reasonable?• Other means exhausted?

USER GENERATED CONTENT – WHAT YOU CAN (AND CAN’T) DO WITH IT

What lawyers need to know about social media when advising clients

Is There a Reasonable Expectation of Privacy?

• No, if the information in question can be accessed publicly (i.e. Information posted on user’s public MySpace page is not “private” (Moreno vs. Hanford Sentinel Inc.)• But Yes, if information is password

protected, behind a firewall, or restricted

• But No, if corporate policies prohibit an employee’s online activity (ie private use of corporate computers)• But Yes, if there is a countervailing right at

stake (i.e. use of password-protected email account on employee-owed computer for privileged attorney/client communications ) (Stengart vs. Loving Care Agency)

• Issue now before the Supreme Court (City of Ontario v. Quon)

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Social Networking and EU Data Privacy

• On June 12, 2009 the Article 29 Data Protection Working Party adopted an opinion for social networking sites (SNS) (including operators outside EU) – to meet the requirements of EU data protection law. See WP 163, “Opinion 5/2009 on online social networking.”

• Warnings to users about the privacy risks when uploading

information• Requirements about voluntariness of uploading sensitive data

(i.e., ethnic data)• Limitations on storage of 3rd party data• Limitations on how, by whom and to whom invitations to

Connect are sent;• Provisions for retention of data for users banned from the site• Retention of personal data when account goes inactive or is

deleted• Application of EU Data Protection laws even if SNS is outside

the EU • SNS User falls under EU Data Protection Act when primary

purpose of use is commercial• Law is constantly evolving so look frequently for updates

Source: http://ec.europa.eu/justice_home/fsj/privacy/docs/wpdocs/2009/wp163_en.pdf

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Twitter is not Private… and Fair Game for Employers

Source: http://www.resumebear.com/blog/index.php/2009/04/10/30-ways-to-loose-a-job-on-twitter/

You Can Act When Employees Act Out…

You can fire an Employee for posted comments that are public or to which you had legal access according to the terms and conditions of the site

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Lawyers Cannot, However, Act onContent Obtained Via Deceptive Means

• Unethical to use 3rd Party to “Friend” a litigation witness in order to gain access to Facebook page to find impeachment material

• Houston’s Restaurant request that employee divulge password to investigate Internet “Gripe” site was “coercion” and therefore access to the material on site was “unauthorized” under the Stored Communications Act (18 U.S.C. § 2701(c)(2))

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When Employers Know, They Must Act; When They Act, It Must Be Evenhanded

• Blakey v. Continental Airlines (NJ 2000):• No duty to monitor, but when

airline has knowledge of harrassing messages on online employee message board, it has a duty to stop it

• Simonetti v. Delta Air Lines Inc., No. 5-cv-2321 (N.D. Ga. Sept. 7, 2005• Employer who fired a flight

attendant for posting provocative pictures on her blog had duty to treat other employees similarly for posting similarly inappropriate materials online

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“It Wasn’t Me, My Dog Posted This to My Facebook Page:”Admissibility of Social Networking Content

Who posted the Content? Differing standards of admissibility…• Testimony from MySpace

representative & wife’s recollection of instant messages on MySpace sufficient for admission of evidence that the defendant engaged in explict instant messaging with victim and that it was unlikely that third party was involved People v. Clevenstine (2009)

• Totality of the facts, including Defendant’s MySpace admission that she had keyed plaintiff’s car, were admissible. In re J.W. (2009)

Source: http://www.texasbar.com/Template.cfm?Section=Current_Issue&Template=/ContentManagement/ContentDisplay.cfm&ContentID=26428

DISCOVERY, IP AND OTHER LEGAL ISSUES INTERSECTING SOCIAL MEDIA

What lawyers need to know about social media when advising clients

Social Media & eDiscovery: Some Key Challenges

Social networking sites are used increasingly as collaboration platforms, where discoverable content is created. Here are just some key discovery challenges this creates:

• Who worked on or viewed content and in what context?

• Abbreviations and Internet lingo clouds clear meaning of social media content

• How much do you know about how employees are representing your brand on social networking sites?

• Where does the data reside? If it’s on 3rd party services, can you get to it? At how much time and expense?

• Privacy implications of the employee, whose content you’re discovering

• Terms and conditions of third party site and tenaciousness with which they’ll protect member data

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Inaccessibility Rules: Do Litigants need to Turn Over Social Media Content in Discovery?

• FRCP Inaccessibility Rules: FRCP 26 (B)(2)(B): A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. • must show that the information is not

reasonably accessible because of undue burden or cost.

• FRCP 45 (D)(1)(D): A person responding to a subpoena need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost.

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Do Inaccessibility Rules Applyto Social Media?

• Text messaging devices) are discoverable under the standards of FRCP 26(b)(1) ( Flagg v. City of Detroit, 252 F.R.D. 346; 2008 U.S. Dist. LEXIS 64735 August 22, 2008)

• However no cases have yet specifically ruled on the preservation and production requirements of third party social networking sites – but it is inevitable

• Best practice to consider preservation and discovery of outlier ESI Data in your strategy

Losing Your Cookies: Libel & Defamation – Same Standards, New Media

• Horizon Group v. Bonnen: Landlord suit against tenant dismissed when vague Tweet failed to meet traditional libel standard • “@JessB123 You should just come anyway.

Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it's ok.”

• Kim Kardashian sued for allegedly defamatory Tweet denying endorsement of Doctor Sanford Siegel’s Cookie Diet• "Not true! I would never do this unhealthy diet!

I do QuickTrim!“• "If this Dr. Siegal is lying about me being on this

diet, what else are they lying about? Not cool!“• Issues intermingle – is this simply an opinion?

Was the QuickTrim quip an undisclosed endorsement?

Can you Sue the ISP for Defamation for Content Posted by a Third Party?

• The FCC Communications Decency Act of 1996 (47 U.S.C. § 230) protects ISP from posting of user generated content• Enacted to ensure ISPs would not be

exposed to liability as "publishers" of any information provided by another "information content provider

• No ISP shall be treated as the publisher of any information provided by another information content provider.

• No effect on IP, State or Privacy Law• Internet publishers are treated differently

from publishers in print, television, and radio.

• Immunity doe not apply if host exercises editorial control over the content and the edits materially alter the meaning of the content

Defamers Anonymous…How do you Identify Anonymous Defamers?

Source: Online Defamation and Anonymous Defendants, Richard Raysman and Peter Brown, New York Law Journal, February 10, 2010

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• 2 Standards emerging for identifying anonymous speaker:

– Dendrite Int'l v. Doe: – Attempt to notify/respond– Specify statements– Showing of support for each claim– Courts weigh right of anonymous free speech vs. strength of

plaintiff’s case and legal necessity for disclosure– Doe v. Cahill: More rigid summary judgment standard,

requiring plaintiff to: • Notify speaker of discovery request and give time to

respond • Demonstrate merits by giving evidence showing issue of

material fact for all elements defamation claim.– State Courts seem to be adopting Dendrite or Cahill

standards too• Defendants may attempt to strike complaint based on

speech’s protected nature (Anti-SLAPP statutes)

Copyright Infringement? ISP’s Have Limited Liability

• Digital Millenium Copyright Act of 1998• Section 512(c) limits service provider

liability material stored at user’s direction• If the ISP has a designated agent to

receive infringement notifications• Contact info must be provided to

copyright office and posted on the site• ISP must take down infringing material

expeditiously upon receiving valid notification

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Does A Posting Amount to Publication?

• Common law rights established at work’s creation, but registration is required for statutory enforcement• Statutory damages and attorneys fees available for unpublished

works if work was registered before infringement (17 U.S.C. § 412)

• For published works, registration must take place within 3 months of publication to perfect rights

• Is a work posted online “published” under © Law?• Publication = distribution of work to public by sale or other

transfer (mere public display is not publication) (17 U.S.C. § 101) • Website page is “published” because users can take control of

code and copy. Getaped.com Inc. v. Cangemi, 188 F.Supp.2d 398 (2002)

• Open question: is material posted on social networking site also “published” per Getaped?• Is posting open to public or private? What do ISP Terms and

Conditions say about copyright transfer?• If “published”, owner has 3 months from time of posting to

register work to perfect statutory rightsSource: Copyright Protection on Social Networking Sites, Ryan W. O'Donnell And Aneesh Mehta The Legal Intelligencer, March, 2010

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Copyright Best Practices

• Understand ISP sites terms and conditions before posting

• Register all works with Copyright office for which you want statutory copyright protection

• Mark all content as copyrighted with the date, name of owner and whether it may be reproduced without consent

• Understand the practical limitations of your control prior to posting content to a social networking site

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Trademark Issues: Cybersquatting

• Domain name disputes• Uniform Domain-Name Dispute-

Resolution Policy (UDRP)• Anti-cybersquatting Consumer

Protection Act (Consumer Protection Act , 15 USC §1125(D))• “Gripe” Site’s Excepted

• May not apply to second-level domain names, i.e.• Ford.com – Protected• Facebook.com/Ford – May not be

protected

• Trademark Infringement Suit• Tony La Russa v Twitter

• Site-Specific Complaint ResolutionSource: http://www.insidecounsel.com/Issues/2009/September-2009/Pages/Names-Sake.aspx

Best Practice: Claim Your Name and/or Brand

• Site settings allow companies to claim your URLs for your Facebook page: www.facebook.com/USERNAME

• Claim your company brand or trademark to prevent cybersquatting

• Open question remains regarding how Facebook and other sites will resolve disputes

What to Do When You Find Infringing Material

• Look to site’s terms and conditions and utilize relevant reporting mechanisms for infringing material

• Other legal remedies pursued in consultation with senior management and corporate communications teams including:• Cease and desist• Infringement actions• Injunction• Other common law and

statutory remedies

Be Cautious About “Lawyering-it-Up”

http://www.youtube.com/watch?v=7SeL6i3sHM0

SOCIAL MEDIA POLICIESReducing Risk & Exposure

Policy Considerations• Review existing policies In light of the

company’s orientation towards social media: • Including privacy, confidentiality, email use,

legal holds, and employee ethics• Form a Social Media Team to guide

executives on social media policy • Team should monitor web traffic about

the company • Report adverse communications to someone

with authority to act as soon as possible.• Training programs to disseminate the

policy and to remind employees of existing policies. • In-house online self study programs,

presentations, or outsourced to consultants.

When Crafting and Enforcing Policies Beware of “Lifestyle Discrimination” Statutes

• “Lifestyle” and “Off-Duty” statutes protect an employee's use of lawful products or participation in lawful off-duty activities, conduct, or speech (i.e. Smoking)

• Examples:• New York: Can’t refuse to hire or

fire employee for off-duty legal political activity, use of consumable products, recreational activities, union membership

• See also California, North Dakota,

• No specific cases applied to social networking yet

Special Considerations for Regulated Industries

• Regulated Industries should research whether special social media rules have been promulgated

• i.e., in January, 2010, the Financial Industry Regulatory Authority issued new social media guidelines covering, among other things:•Record Keeping Responsibilities•Suitability Responsibilities•Supervision of Social Media Sites•Third Party Posts

Template Policy• For consideration in a Social Media Policy

• Company’s social media position• Existing policies• Use of email addresses, logos, trademarks, brands• “Voice” of company contributions• Disclaimers• Stakeholder considerations• Intellectual Property Rights

• Template policy found on Martindale Connected “Social Media Policy Group” (www.martindale.com/connected)• Group Created by James Wong, ACC So. Cal Member & General Counsel

of UMA Enterprises• Share social media best practices with other legal departments

Example: Liberal Policy• Know and follow IBM's Business Conduct Guidelines. • IBMers are personally responsible for the content they publish on blogs, wikis or any other form of user-generated

media. Be mindful that what you publish will be public for a long time—protect your privacy. • Identify yourself—name and, when relevant, role at IBM—when you discuss IBM or IBM-related matters. And write in the first

person. You must make it clear that you are speaking for yourself and not on behalf of IBM. • If you publish content to any website outside of IBM and it has something to do with work you do or subjects associated with

IBM, use a disclaimer such as this: "The postings on this site are my own and don't necessarily represent IBM's positions, strategies or opinions."

• Respect copyright, fair use and financial disclosure laws. • Don't provide IBM's or another's confidential or other proprietary information. Ask permission to publish or report on

conversations that are meant to be private or internal to IBM. • Don't cite or reference clients, partners or suppliers without their approval. When you do make a reference, where possible link

back to the source. • Respect your audience. Don't use ethnic slurs, personal insults, obscenity, or engage in any conduct that would not be

acceptable in IBM's workplace. You should also show proper consideration for others' privacy and for topics that may be considered objectionable or inflammatory—such as politics and religion.

• Find out who else is blogging or publishing on the topic, and cite them. • Be aware of your association with IBM in online social networks. If you identify yourself as an IBMer, ensure your

profile and related content is consistent with how you wish to present yourself with colleagues and clients. • Don't pick fights, be the first to correct your own mistakes, and don't alter previous posts without indicating that you have

done so. • Try to add value. Provide worthwhile information and perspective. IBM's brand is best represented by its people and what you

publish may reflect on IBM's brand.

Example: Restrictive Policy• Personal websites and blogs that contain sports content are not permitted• Prior to engaging in any form of social networking dealing with sports, you must receive

permission from the supervisor as appointed by your department head• ESPN.COM may choose to post sports related social media content• If ESPN.com opts not to post sports related social media content created by ESPN talent, you

are not permitted to report, speculate, discuss or give any opinions on sports related topics or personalities on your personal platforms

• The first and only priority is to serve ESPN sanctioned efforts, including sports news, information and content

• Assume at all times you are representing ESPN• If you wouldn't say it on the air or write it in your column, don't tweet it• Exercise discretion, thoughtfulness and respect for your colleagues, business associates and our fans• Avoid discussing internal policies or detailing how a story or feature was reported, written, edited or produced

and discussing stories or features in progress, those that haven't been posted or produced, interviews you've conducted, or any future coverage plans.

• Steer clear of engaging in dialogue that defends your work against those who challenge it and do not engage in media criticism or disparage colleagues or competitors

• Be mindful that all posted content is subject to review in accordance with ESPN's employee policies and editorial guidelines

• Confidential or proprietary company information or similar information of third parties who have shared such information with ESPN, should not be shared

• Any violation of these guidelines could result in a range of consequences, including but not limited to suspension or dismissal.

QUESTIONS?

www.martindale.com/connected