Draft alberta lc slides


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  • Just advise management -employees doing bad things as individuals -governing social media communications by the business -e-discovery and production related issuesPicked three topics that hit on the latter two -give something practical to take a way -please share your best practices too!Invited me to talk about my own experience in blogging
  • Licensed communicator-seen numerous times completely erroneous approaches to corporate social media use-comes in the form of policy that encourages “employee engagement” through social media-idea: employees are our best advocates-policy: please use social media to promote our interests-risks: loss of control (representations, reputation), work assignment risk-nobody speaks on our behalf unless we grant them a license and set the terms of the license-and if your public is going to be confused – you’re accountable-essential to control-then you license-can still allow employees to speak about you, their speech, private, subject to general guidelines because it is going to reflect on you -they are still accountable
  • Then you have to figure out what the license saysLots of law firms get hung up on approvalsKnow one in Ontario that has good content but they post seven at a timeThat’s not what this is aboutI think you need something like thisEndorsed this to clients
  • On my own blog, any post about a FaceBook production case gets double the hits of anotherStill makes the news – employee ordered to produce his wallAlso can see the search terms, see all the articling students at insurance defence boutiques gathering the cases...So where’s the law now....Early cases from Ontario suggested that all your FaceBook content was producible if you’ve claimed damages for loss of enjoyment of lifeDefendant has a right to production of a record of how you are living your lifeTo pictures of you looking happy, saying happy things as people do on Facebook (where you do put on a bit of an aside)....Beginning to changeRefused to produce in Stewart and KempsterDefendant swore an affidavit.... just pictures of me on vacation.... filed them sealed.... not hiding anythingThis are of such marginal relevance that I’m not going to order them to be producedPhyical activity is different....Probably rightBecause the use of the happy pictures is somewhat questionableReally not so probative
  • Said most recently in Dakin v. Roth in BC...Then there’s Fric v Greshman-like the Ontario case but questionable statement about comments-if the picture is producible I’d think the contextual information about the picture is also producible-Gives meaning and significance to the picture ordinarily, or at least it could...-prognostication-continue to see motions because it may make tactical sense-judges may eventually get impatient with such motinos which might be reflected in costs awards-but we’re not there yet
  • My summary of the rule for you
  • Run into preservation issues all the timeGo through some thoughtsWho?-often becomes my secretary-can assure it’s done right-not ideal-area of potential liability-give written instructions to client-here’s how to do it-here’s how often
  • This is typically what we get from clientsLook at this!
  • Lots of metadata that can contextualize the act of publicationReadily viewded and capturedHow many people are friendsWho liked itWho commented
  • Compared to beermile.com – 40,000 hits a weekErik Magraken in BC got 130,000 hits last yearAntoninPribetic got 76,000 hits last yeaer...
  • It’s my angry bird drawingFive year old... all he doesTeacher has written letters to us....He does angry birdsI do case summaries...Our routine and our ritualIn this sense has a purpose that is related to the spiritual even and hard to describe
  • Draft alberta lc slides

    1. 1. Social media and the law - Threenuggets and one blawger’s taleDan MichalukJanuary 31, 2013
    2. 2. Outline• Three nuggets for your practice • Intro to the licensed communicator concept • Cases about production of content • Preserving social media evidence• And one blawger’s taleThree nuggets and one blawger’s tale
    3. 3. Licensed communicator concept• A means of taking advantage of social media for business purposes with reasonable control• Most important rule in any social media policy – you don’t speak for us without our license• License those who you trust and train• “Employee engagement” is different and is controlled under your general guidelines for responsible social media useThree nuggets and one blawger’s tale
    4. 4. Licensed communicator concept• Let your licensees breathe! • Green – no approval necessary • Yellow – approval necessary • Red – don’t even askThree nuggets and one blawger’s tale
    5. 5. Cases about production of content• Ontario authority for inferred relevance of social profile content when enjoyment of life is in issue (Leduc v Roman, Murphy v Perger)• Some Ontario judges of coordinate jurisdiction are have questioned authority• Stewart v Kempster from 2012 would limit production to photos of physical activityThree nuggets and one blawger’s tale
    6. 6. Cases about production of content• Fric v Gershman from BC in 2012 is similar to Kempster but specifies that comments of non- parties and the plaintiff (?) are not probative enough to warrant production• Recent comments made in British Columbia trial decision de-emphasize value of evidence – Dakin v RothThree nuggets and one blawger’s tale
    7. 7. Cases about production of content• In the end… • Photos of physical activity will often be producible • Production of photos of joy and happiness may often be resisted successfully • Counsel should focus on what data objects in a social profile are producible, not the profile itself • Comments associated with relevant photos and videos should arguably be producedThree nuggets and one blawger’s tale
    8. 8. Preserving social media evidence• Who? • One person • One person likely to be a good witness• When? • Immediately (it disappears) • Pre-confrontation (it disappears) • Periodically (duration of publication is relevant)Three nuggets and one blawger’s tale
    9. 9. Preserving social media evidence• How? • A printout of a screen capture is a poor representation of the evidence… • … but is usually okay for expression cases • Printing doesn’t tell you what is linked to what, so take notes • Sign it and date itThree nuggets and one blawger’s tale
    10. 10. Preserving social media evidence• What?Three nuggets and one blawger’s tale
    11. 11. Preserving social media evidenceThree nuggets and one blawger’s tale
    12. 12. Preserving social media evidence• What? • How many people read it? • Who read it? • How did readers react? • And don’t forget… • Circumstantial evidence that supports identification• What else? • Preserve complaints (e-mail, voicemail…)Three nuggets and one blawger’s tale
    13. 13. One blawger’s tale• Background in business and magazine writing• 2001 call in Ontario• Research lawyer turned employment/privacy litigator in 2008• Started AAI in summer 2007• ClawBie runner up 2008, award 2009• AAI becomes group blog in January 2011• AAI wins ClawBie 2012• Still only 141,000 all time viewsThree nuggets and one blawger’s tale
    14. 14. One blawger’s taleThree nuggets and one blawger’s tale
    15. 15. One blawger’s tale• Describable rewards • I have a profile and (I hope) credibility • I learn every day • I’ve met interesting people • I can trace a handful of retainers directly to AAIThree nuggets and one blawger’s tale
    16. 16. One blawger’s tale• Risk management • I was a very mature publisher at the start • At arms length but accountability is understood • Started with discretionary approval model • Have become more conservative over time – more facts and less conclusions and opinions • The one time I conveyed sympathy for an applicant’s position it came back to bite meThree nuggets and one blawger’s tale
    17. 17. Social media and the law - Threenuggets and one blawger’s taleDan MichalukJanuary 31, 2013