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Social Media Attorney, Francine Ward, discusses several landmines when it comes to social media in a corporate environment. She discusses having and enforcing a social media policy, copyright law, and a variety of other topics that all corporations should avoid and be mindful of when it comes to their presence (and employees presence) online.
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LIONS, TIGERS & FRIENDS:
LEGAL ISSUES RESULTING
FROM PLAYING IN THE
SOCIAL MEDIA SANDBOX!
Copyright 2010 Francine D. Ward. All Rights Reserved. 1
American Bar Association | Annual Conference
August 5-8, San Francisco, CA
Objectives
Copyright 2010 Francine Ward. All Rights Reserved.
• Identify Social Media Legal Landmines
• Potential Ethical Landmines
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Legal Landmines…3
Copyright 2010 Francine Ward. All Rights Reserved.
Landmine #1
Copyright 2010 Francine Ward. All Rights Reserved.
Not having a Social Media Use
Policy
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What goes in the policy?
Copyright 2010 Francine Ward. All Rights Reserved.
1. Define what is included in “social media”, e.g., blogging, tweeting, browsing Facebook, Myspace, virtual worlds, etc.
2. Let them know what you expect3. Let them know what is a breach of the policy4. Explain there is no “expectation of privacy”5. Inform them that you will monitor their
email, computer, telephone, cell phone, laptop
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Who should know about the policy?
Copyright 2010 Francine Ward. All Rights Reserved.
1. Staff2. Temporary staff3. Independent contractors4. Clients with access to your computers5. Project Collaborators
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Landmine #2
Copyright 2010 Francine Ward. All Rights Reserved.
Not communicating the policy
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Landmine #3
Copyright 2010 Francine Ward. All Rights Reserved.
Not enforcing the policy
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Landmine #4
Copyright 2010 Francine Ward. All Rights Reserved.
Thinking Delete = Delete
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Landmine #5
Copyright 2010 Francine Ward. All Rights Reserved.
Making defamatory statements on
social media sites
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Landmine #6
Copyright 2010 Francine Ward. All Rights Reserved.
Making false & misleading statements
regarding your products/services
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Landmine #7
Copyright 2010 Francine Ward. All Rights Reserved.
Copyright Infringement
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Landmine #8
Copyright 2010 Francine Ward. All Rights Reserved.
Trademark Infringement
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Landmine #9
Copyright 2010 Francine Ward. All Rights Reserved.
Not Protecting Your
Content – making sure you own what you think you own!
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Copyright Ownership
Copyright 2010 Francine Ward. All Rights Reserved.
15
The general rule is that the copyright owner is the person who creates the original work of art/authorship.
EXCEPT … where there’s a contract or it’s a
Copyright 2010 Francine Ward. All Rights Reserved.
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Work Made for Hire
Copyright 2010 Francine Ward. All Rights Reserved.
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What happens when content is created on top
of existing content, i.e. Facebook, Second Life, Twitter. Who owns it?
Landmine #10
Copyright 2010 Francine Ward. All Rights Reserved.
Not reading & understanding “Terms of Use”
BEFORE you accept them
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Meaning of Selected Provisions
Copyright 2010 Francine Ward. All Rights Reserved.
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You give us all rights necessary to enable your application to work with … , including the right to:
1. incorporate your content into streams, profiles, and user action stories;
2. place content, including ads, around your application.
Second Life “Terms of Use”
Copyright 2010 Francine Ward. All Rights Reserved.
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3.2 You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law. However, you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification, to Linden Lab and to other users of Second Life. ..
Summary
Copyright 2010 Francine Ward. All Rights Reserved.
1. Have, communicate, enforce a Social Media Use policy
2. Think before you Tweet, Blog, or post to a Chat3. Get permission 4. Tell the truth about your products/service5. Know that delete DOES NOT = DELETE6. Read Terms of Use carefully
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Ethical Landmines22
Copyright 2010 Francine Ward. All Rights Reserved.
Ethical Landmines
Copyright 2010 Francine Ward. All Rights Reserved.
1. Unauthorized Practice of Law2. Advertising and Solicitation 3. Communicating with a Represented Party4. Conflicts of Interest5. Disclosure of Confidential Information
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Ethical Landmine #1
Copyright 2010 Francine Ward. All Rights Reserved.
CA Rule 1-300 Unauthorized Practice of Law
A. A member shall not aid any person or entity in the unauthorized practice of law.
B. A member shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.
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Ethical Landmine #2
Copyright 2010 Francine Ward. All Rights Reserved.
CA Rule 1-400 Advertising & Solicitation
A. For purposes of this rule, "communication" means any message or offer made by
or on behalf of a member concerning the availability for professional employment of
a member or a law firm directed to any former, present, or prospective client,
including but not limited to the following:
1. Any use of firm name, trade name, fictitious name, or other professional
designation of such member or law firm; or
2. Any stationery, letterhead, business card, sign, brochure, or other
comparable written material describing such member, law firm, or
lawyers; or
3. Any advertisement (regardless of medium) of such member or law firm
directed to the general public or any substantial portion thereof; or
4. Any unsolicited correspondence from a member or law firm directed to
any person or entity.
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… Rule 1-400 continued
Copyright 2010 Francine Ward. All Rights Reserved.
B. For purposes of this rule, a "solicitation" means any
communication:
1. Concerning the availability for professional
employment of a member or a law firm in which a
significant motive is pecuniary gain; and
2. Which is:
a) delivered in person or by telephone, or
b) directed by any means to a person known to
the sender to be represented by counsel in a
matter which is a subject of the
communication.
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… Rule 1-400 continued
Copyright 2010 Francine Ward. All Rights Reserved.
C. A solicitation shall not be made by or on behalf
of a member or law firm to a prospective client
with whom the member or law firm has no
family or prior professional relationship, unless
the solicitation is protected from abridgment by
the Constitution of the United States or by the
Constitution of the State of California. A
solicitation to a former or present client in the
discharge of a member's or law firm's
professional duties is not prohibited.
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… Rule 1-400 continued
Copyright 2010 Francine Ward. All Rights Reserved.
E. The Board of Governors of the State Bar shall formulate and adopt
standards as to communications which will be presumed to violate this
rule 1-400. The standards shall only be used as presumptions affecting
the burden of proof in disciplinary proceedings involving alleged
violations of these rules. "presumption affecting the burden of proof"
means that presumption defined in Evidence Code sections 605 and
606. Such standards formulated and adopted by the Board, as from time
to time amended, shall be effective and binding on all members.
F. A member shall retain for two years a true and correct copy or recording
of any communication made by written or electronic media. Upon written
request, the member shall make any such copy or recording available to
the State Bar, and, if requested, shall provide to the State Bar evidence
to support any factual or objective claim contained in the communication
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Ethical Landmine #3
Copyright 2010 Francine Ward. All Rights Reserved.
CA Rule 2-100 Communication With a Represented Party
A. While representing a client, a member shall not communicate directly or indirectly about
the subject of the representation with a party the member knows to be represented by
another lawyer in the matter, unless the member has the consent of the other lawyer
B. For purposes of this rule, a "party" includes:
1. An officer, director, or managing agent of a corporation or association, and a
partner or managing agent of a partnership; or
2. An association member or an employee of an association, corporation, or
partnership, if the subject of the communication is any act or omission of such
person in connection with the matter which may be binding upon or imputed to the
organization for purposes of civil or criminal liability or whose statement may
constitute an admission on the part of the organization.
C. This rule shall not prohibit:
1. Communications with a public officer, board, committee, or body; or
2. Communications initiated by a party seeking advice or representation from an
independent lawyer of the party's choice; or
3. Communications otherwise authorized by law.
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Ethical Landmine #4
Copyright 2010 Francine Ward. All Rights Reserved.
CA Rule 3-100 Confidential Information of a ClientA. A member shall not reveal information protected from disclosure by Business and Professions Code
section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in
paragraph (B) of this rule.
B. A member may, but is not required to, reveal confidential information relating to the representation of
a client to the extent that the member reasonably believes the disclosure is necessary to prevent a
criminal act that the member reasonably believes is likely to result in death of, or substantial bodily
harm to, an individual.
C. Before revealing confidential information to prevent a criminal act as provided in paragraph (B), a
member shall, if reasonable under the circumstances:
1. make a good faith effort to persuade the client: (i) not to commit or to continue the
criminal act or (ii) to pursue a course of conduct that will prevent the threatened death or
substantial bodily harm; or do both (i) and (ii); and
2. inform the client, at an appropriate time, of the member's ability or decision to reveal
information as provided in paragraph (B).
D. In revealing confidential information as provided in paragraph (B), the member's disclosure must be
no more than is necessary to prevent the criminal act, given the information known to the member at
the time of the disclosure.
E. A member who does not reveal information permitted by paragraph (B) does not violate this rule.
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Relevant California State Bar Ethical Opinions
Copyright 2010 Francine Ward. All Rights Reserved.
1. Attorney Advertising – 2001-155
2. Attorney/Client Privilege – 2003-161
3. Web site Disclaimers – 2005-168
4. Chat Room Discussions – 2004-166
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Francine D. Ward, Esq.
Copyright 2010 Francine Ward. All Rights Reserved.
Feel free to contact me in any number of ways:
Francine D. WardLaw Ofc. Of Francine D. Ward775 E. Blithedale, Suite 325
Mill Valley, CA 94941
(415) 389-0975(415) 389-0976 [fax]
[email protected]/francineward
www.facebook.com /Francineward (Business | Intellectual Property Lawyer)
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