We are beta testing the global power of the socialweb.
We are in the alpha phase with the law and howit will manage, shape and react to the socialweb.
social media... ...yea How to Effectively Use Social Media as a Lawyer
Twitter Issues:TrademarkAbuse Issues- Unwanted InteractionThe 140 Character Attorney-Client RelationshipFollowing the Right PeopleSharing Relevant InformationAttracting 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 questionsDisclaiming your interaction on the site
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
5 Quick Tips OverviewTestimonials with atypical results - must disclosewhat is normally expectedBloggers who are paid to make endorsements mustdisclose itMust disclose connections between research &advertiser if using a research reportPaid endorsements deceptive if they make false ormisleading claims.Advertisers & endorsers liable for false orunsubstantiated claims
Both laws stem from the need to provide someshield to ISP’s from the actions of their users.
DMCA = Intellectual PropertySafe Harbors512(a)- Safe harbor “for infringement of copyright by reasonof the [ISP’s] transmitting, routing, or providingconnections for” infringing material.512(b) – Safe harbor that provides immunity for systemcaching512(c)- Safe harbor that provides immunity for informationresiding on the ISP’s systems at the direction of users512(d)- Safe harbor that provides immunity for informationlocation tools such as search engines.
Names you have probably heard associatedwith the DMCA:YouTubeBitTorrentThe Pirate Bay
When the law gets complex:Sampling and Mashups
CDA = Defamatory Content (generally)Section 230 of the Communications Decency ActGeneral Rule:If a website is involved in any way in the creation ordevelopment of the information, they will likely beconsidered an “information content provider.” Theseopens them to liability.
CasesFraley v. Facebook, Inc.Zango v. Kapersky LabDoe v. MySpace
Children’s Online Privacy Protection ActRequires websites to get parental consent beforecollecting or sharing info for children under 13Enforced by the Federal Trade CommissionApplies to commercial websites and other onlineservicesIf you know you have minors on your site, closethe accounts
Children’s Online Privacy Protection ActRegulates all types of identifying informationExemptions: electronic postcards, contests, onlinenewsletters, homework helpExample: Disney’s Club PenguinIf you know you have minors on your site, closethe accounts
“Cyber” BullyingDefinition: Use of the Internet and other technologies to harm other people through deliberate, repeated and hostile behavior
“Cyber” BullyingLegislative 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
“Cyber” BullyingSupreme 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 FormationClient ConfidentialityTrial PublicityFee Splitting Using Crowdsourced ServicesCloud Storage of Client FilesEx Parte Communications
ETHICS!Relationships Online with JudgesRelationships Online with JurorsWhat’s Discoverable Online
ETHICS! Attorney-Client Relationship FormationAccidental Clients- When does someone become aprospective client?ABA Rule 1.18 - Prospective Clients
ETHICS! Client ConfidentialityCA Evidence Code Section 950ABA Rule 1.18 - discussions with prospectiveclients are confidentialBoth of these issues can be solved by websitedisclaimers - California Formal Op. no. 2005-168
ETHICS! Trial PublicityCalifornia Rule of Professional Conduct 5-120“Extrajudicial Statements”Avoiding prejudicial effectsDon’t say anything you wouldn’t in a phone call orpress release
ETHICS! Cloud Storage of Client FilesDefined: Shared Pool of Storage Resources HostedOnlineIf these services are compromised, you arecompromising your clients confidentialinformation
ETHICS! Ex Parte CommunicationsRule 5-300 - Contact with OfficialsOn a case, social media use being consideredex parte communication(Judge Brown follows you on Twitter)
ETHICS! Relationships Online with JudgesJudges involvement limited in online socialnetworking communitiesNo rule barring it, but the “appearance ofimpropriety” appearsCheck California Judicial Ethics CommissionOpinions
ETHICS! Relationships Online with JurorsRule 5-320 - You are barred from having contactwith your jurorsIt’s no different on Twitter & Facebook.Sleuthing through “old high school friends”profiles
ETHICS! What’s Discoverable OnlineSocial Media profiles are fair gameBut how you access them could be an issue