The Practicing Lawyers Guide To Social Media
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The Practicing Lawyers Guide To Social Media

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Overview of the legal implications of social media for lawyers

Overview of the legal implications of social media for lawyers

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  • http://www.youtube.com/watch?v=sIFYPQjYhv8&feature=player_embedded
  • In 2009, the Center for Marketing Research at the University of Massachusetts Dartmouth released one of the first studies of the Fortune 500’s adoption and usage of one of the best-known forms of social media – blogging. This new study revisits and refreshes that prior in-depth study and expands to look at the Fortune 500’s usage of the most dramatically growing new social media site – the microblogging service Twitter. This research also builds on the Center’s work since 2007 examining social media in a variety of organizations including the Inc. 500, US colleges and universities and the Forbes list of the 200 largest charities. (http://www.umassd.edu/cmr)
  • Greater availability of social networking services both inside and outside the firewall, coupled with changing demographics and work styles will lead 20 percent of users to make a social network the hub of their business communications. During the next several years, most companies will be building out internal social networks and/or allowing business use of personal social network accounts. Social networking will prove to be more effective than e-mail for certain business activities such as status updates and expertise location. The huge popularity of the consumer-microblogging service Twitter, has led many organizations to look for an "enterprise Twitter," that provides microblogging functionality with more control and security features to support internal use between employees. Enterprise users want to use microblogging for many of the same reasons that consumers do to share quick insights, to keep up with what colleagues are doing, to get quick answers to questions and so on. Through 2013, IT organizations will struggle with shifting from providing a platform to delivering a solution. This will result in over a 70 percent failure rate in IT-driven social media initiatives. Fifty percent of business-led social media initiatives will succeed, versus 20 percent of IT-driven initiatives.
  • Just what are the key online professional networking activities for lawyers? Listening, collaborating and promoting. These may sound easy, but the order is important. Contributing or promoting yourself without listening first is like talking loudly during a concert. It creates a bad first impression. Just as the first impression you make in person can have lasting consequences, your first forays into social networking online can have a long-term impact. Google never forgets what you've posted, commented on or discussed.The first phase of social media engagement is listening. Observe what others say and their tone; monitor your reputation and the reputations of people important to you; follow trends and watch for opportunities to participate and contribute. This step is crucial -- the need to monitor and observe your own activities never ceases -- and includes:Creating Google or private community alertsSubscribing to newsfeeds and blog readersScanning social media – Blogpulse, tweetscan, community searchesPhase two is Collaboration -- taking actions to engage with other and become visible. You might:Join an online community or professional networkCreate a basic profileConnect with peers, help others make connections and begin to leverage those connections to expand your networkContribute to ratings, rankings and surveysAdd your comments to a blogParticipate in discussions and groupsAsk good questions and offer useful advice and answersEach profile detail, connection, rating or survey response, blog comment or discussion post adds depth and detail to your online persona, and helps create trust and respect inside and outside your specific community.Phase three is Promoting, which takes collaboration a step further to create an active marketing stream of your online activities. Think of this as a program for creating and expanding your personal brand online, developing a professional reputation based on thought leadership contributions and support of your firm and other practitioners. Both Corporate Counsel and Private Practice attorneys benefit from actively promoting their POV online – be it to get more business, find a new position or stay connected to industry trends and developments. Engaging in each of these three phases – listening, collaborating and promoting -- enhances the impact of the other phases. The result is greater trust, greater visibility and stronger connections within the professional network. In turn, you will be able to utilize Online Legal Business Tools such as preferred provider lists, integrated search and client ratings more effectively. This will advance your legal practice in new ways -- more quickly, more thoroughly and, in most cases, at less cost than through traditional off-line methods.
  • Groups can be used to segment your audience. Ideally, you want to join two to five groups per network, being mindful of the commitment this entails. Smaller groups typically require more engagement and participation. The expectations for small group collaboration will be higher than for a larger network where there are thousands or million of users. Often times, when you join a group, your membership profile will display a badge or icon that you are part of the group. This is a great way to signal your specialization and expertise to the world. In some cases, you may not want that badge to appear and you can amend your privacy settings so that the group is not displayed on your public profile. Groups definitely require a modest commitment of your time.
  • Copy of complaint can be found at: http://epic.org/privacy/inrefacebook/EPIC-FacebookComplaint.pdfPublicly available information: Facebook now treats the following categories of personal data as “publicly available information:”• users’ names, • profile photos, • lists of friends, • pages they are fans of, • gender, • geographic regions, and • networks to which they belong.Internet users whether or not they use Facebook, and others. According to Facebook, such information can be accessed by “every application and website, including those you have not connected with . . . .”Information Disclosure to 3rd party application providers:Facebook Platform transfers Facebook users’ personal data to application developers without users’ knowledge or consent. Facebook permits third-party applications to access user information at the moment auser visits an application website. According to Facebook, third party applications receive publicly available information automatically when you visit them, and additional information when you formally authorize or connect your Facebook account with them. With the Preferred Developer Program, Facebook will give third-party developers access to a user’s primary email address, personal information provided by the user to Facebook to subscribe to the Facebook service, but not necessarily available to the public or to developers.
  • Returning to the idea that behaviors that work in person are typically successful online, here are a number of watch-points for evaluating your participation in a specific professional network.For example, it is often difficult to delete your professional profile online after you join a network, so using careful guidelines for assessing whether the network is professionally beneficial, credible and will likely be of benefit to you will help avoid problems later on.A site that allows users to post legal advice is most likely not a network of legal professionals. Questions like: “How do I find a divorce lawyer in Kansas?” “I cut my finger at the post office and want to sue” are indicators that you will not find like-minded professionals engaged in peer collaboration at this site. Similarly, professional networks are just that – professional. If there is brash solicitation or sales efforts online, it is likely not designed for your benefit.Understanding the site's purpose and business model are key. Who created it and why? Be sure to understand their motives just as you would before joining any group. If a site makes no effort to validate your credentials, how can you be sure the members you will be interacting with are who they say they are? The same goes for anonymity. How much of your professional information -- and reputation -- would you share with a group of unidentified individuals? How would you be able to judge the reliability of information shared without trusting the source of the information?
  • Judges: Lawyers can generally “friend” whomever they please. Excepts occur when there is some legal or protected relationship that exists, where friending may violate a trust or appearance of propriety. A recent Florida Supreme Court Advisory Opinion held that the listing lawyers who may appear before the judge as “friends” on a judge's social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge. The opposite was held in a South Carolina Advisory Opinion, where it was held that a judge should not become isolated from the community in which the judge lives. Allowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge. EmployeesThe ubiquity of social networking sites increasingly blurs the line between public and personal information.  And that means that whatever is on your site or what can be confirmed you saw on someone else's might be evidence in a lawsuit down the road.  (http://www.businessinsider.com/facebook-friending-your-employees-is-great-way-to-get-sued-2009-10)Witnesses:Friending for deceptive purposes – such as to learn details about a trial witness for impeachment purposes is unethical. Philadelphia Bar Association’sProfessional Guidance Committee found it would be unethical if an attorney who is not on the user’s “friends list,” were to ask a third party to send a friend request to the user. Ethics violation would be found because of use of “deception.” The attorney was advised that omission would be a “highly material fact” purposeful concealment of a fact from the witness for the purpose of inducing the witness to allow access Defendant: In January, 2010, Mountain Judicial Circuit Superior Court Chief Judge Ernest H. Woods III. Stepped down from the bench after a 17 year career, during a judicial inquiry investigating Facebook dialogue he was having with a woman who was a defendant in a pending matter before his bench. eMails had surfaced showing a developing personal relationship between the defendant and the judge. In the e-mails, the defendant prevailed on the judge for his help with her friend's case in drug court -- where Woods presided -- as well as a case of her own in which she was accused of theft by deception for not making payments on a loan. http://www.law.com/jsp/article.jsp?id=1202437652986&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=NW_20100107&kw=Ga.%20Judge%20Steps%20Down%20Following%20Questions%20About%20Facebook%20Relationship%20With%20Defendant&hbxlogin=1
  • How do you disclose on Twitter? Is one tweet enough? FTC seems to think so…Serena Williams Tweet: Richard Cleland, Assistant Director, of the FTC's Division of Advertising Practices said of the situation: "Although we do not generally comment publicly about ongoing advertising campaigns, it seems pretty clear that Serena Williams' tweet about Nabisco Calorie Pack is sponsored advertising. (She says that she is shooting a campaign for Nabisco). When it is clear from the context of a communication§ 255.1   General considerations.Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser. Furthermore, an endorsement may not convey any express or implied representation that would be deceptive if made directly by the advertiser. [ See §255.2(a) and (b) regarding substantiation of representations conveyed by consumer endorsements.(b) The endorsement message need not be phrased in the exact words of the endorser, unless the advertisement affirmatively so represents. However, the endorsement may not be presented out of context or reworded so as to distort in any way the endorser's opinion or experience with the product. An advertiser may use an endorsement of an expert or celebrity only so long as it has good reason to believe that the endorser continues to subscribe to the views presented. An advertiser may satisfy this obligation by securing the endorser's views at reasonable intervals where reasonableness will be determined by such factors as new information on the performance or effectiveness of the product, a material alteration in the product, changes in the performance of competitors' products, and the advertiser's contract commitments.(c) When the advertisement represents that the endorser uses the endorsed product, the endorser must have been a bona fide user of it at the time the endorsement was given. Additionally, the advertiser may continue to run the advertisement only so long as it has good reason to believe that the endorser remains a bona fide user of the product. [ See §255.1(b) regarding the “good reason to believe” requirement.](d)Advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers [ see §255.5]. Endorsers also may be liable for statements made in the course of their endorsements.
  • Magistrate:A magistrate in England found himself steeped in hot water after it was discovered that he was "tweeting" about his cases. It all came to a boil after another magistrate discovered the tweets and complained. The tweets came after the magistrate was called in on a Saturday to hear bail applications for defendants arrested the night before. "Called into Court today to deal with those arrested last night and held in custody," he tweeted. "I guess they will be mostly drunks but you never know.“ He continued to tweet as he heard the cases of three men accused of robbery. For example, one tweet said, "1st defendant. Conspiricy to rob TSB of £500,000. Good start - wrong previous convictions presented." He later concluded with this tweet: "Finished hearing bail. 3 refused for planning robbery of £480,000 from Tsb in Dawley, Telford.“ When the magistrate learned that his tweets were to be investigated by a judicial advisory committee, he chose instead to resign from the bench. But even as he resigned, he maintained he did nothing wrong. Where better to defend himself but on Twitter, where he posted this explanation: "I didnt tweet whilst sitting in court but in the retiring room during the break and at the end of the hearing." Mistrial Results in Florida: Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock. Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, a waste of eight weeks of work by federal prosecutors and defense lawyers. “We were stunned,” said a defense lawyer, Peter Raben, who was told by the jury that he had been on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”Criminal Conviction Set Aside… Frank R. Wilson, a lawyer in San Diego, caused a criminal conviction to be set aside and sent back to a lower court because of his blog postings as a juror. According to a decision published recently in the California Law Journal and picked up by the Legal Profession Blog, Mr. Wilson, while serving on a jury in 2006, posted details of the case on his blog. Any juror who blogs about the details of a trial risks trouble and even civil contempt charges. But lawyers like Mr. Wilson also face professional penalties that can threaten their livelihood.Mr. Wilson received a 45-day suspension, paid $14,000 in legal fees and lost his job. He said that warnings not to discuss the case did not ban blogging; the bar disagreed. Mr. Wilson also had not disclosed during jury selection that he was a lawyer. In an interview, Mr. Wilson said he had not been working as a lawyer at the time and had only been asked his occupation. Assistant Public Defender: That penalty is light compared with the price paid by Kristine A. Peshek, a lawyer in Illinois who lost her job as an assistant public defender after 19 years of service over blog postings and who now faces disciplinary hearings as well. According to the complaint by officials of the state’s legal disciplinary body, Ms. Peshek wrote posts to her blog in 2007 and 2008 that referred to one jurist as “Judge Clueless” and thinly veiled the identities of clients and confidential details of a case, including statements like, “This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because ‘he’s no snitch.’ ” Another client testified that she was drug free and received a light sentence with just five days’ jail time, and then complained to Ms. Peshek that she was using methadone and could not go five days without it. Ms. Peshek wrote that her reaction was, “Huh? You want to go back and tell the judge that you lied to him, you lied to the presentence investigator, you lied to me?” The complaint, first noted by the Legal Profession Blog, said that not only did Ms. Peshek seem to reveal confidential information about a case, but that her actions might also constitute “assisting a criminal or fraudulent act.” Mistrial in Commercial Fraud Case:Miami Dade Circuit Judge Scott Silverman declared a mistrial in a commercial fraud case in May when the Plaintiff, YizhakToledano was seen by a court spectator sending text messages to the witness, COO Gavin Sussman, during a sidebar conference while the witness was still on the stand.  Now the fraud suit has been dismissed by the judge, who wrote a scathing rebuke to Plaintiff for his conduct, and sanctioned Plaintiff for Defense fees and costs.Convict Seeks New Trial:A Somali man convicted of attempted murder in Hennepin County, Minn., wants a new trial, alleging the prosecutor in his case posted anti-Somali comments on her Facebook Internet page. An attorney for Ahmed Ali filed a motion Tuesday accusing Hennepin County attorney Gretchen Gray-Larson of writing derogatory remarks about people from Somalia on Facebook during the trial.Ali was recently convicted in the August 2008 shooting that wounded three people at the Cedar Riverside Plaza in Minneapolis.The Star Tribune reports the motion for a hearing was not specific about the alleged remarks. The case is scheduled to be heard Monday in Hennepin County. Gray-Larson did not immediately return a call left by The Associated Press seeking comment.
  • Before Trial: You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. 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 networking websites, including Facebook, My Space, LinkedIn, and YouTube.At the Close of the Case: During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.State Courts: slowly grappling with this issue: The joint committee of the Florida Supreme Court Committees for Standard Jury Instructions in Civil and Criminal Cases is recommending to the court that jurors be read jury instructions multiple times and “they should be told that they cannot perform outside research using the Internet or use electronic devices to communicate about the case. http://www.jaxobserver.com/2010/01/16/a-tweet-may-thwart-trial-process/
  • Various rules impact whether blogging or tweeting is permitted from a courtroom. A court’s administrative or local rules may prohibit or limit the use of electronic media devices being used from the courtroom. Lawyers should always check, and use these guidelines as a general, but not exhaustive, rule of thumb for determining what is or is not allowed before a particular bench.For Federal Criminal proceedings: In United States v. Shelnutt, 4:09-cr.-14 (M.D. Ga. Nov. 2, 2009), a federal district court in Georgia ruled that Rule 53 of the Federal Rules of Criminal Procedure prohibits tweeting from criminal proceedings in federal court and that Rule 53 does not unconstitutionally restrict the freedom of the press under the First Amendment to the U.S. Constitution. Rule 53 provides: Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom. The court interpreted "broadcasting" in Rule 53 to include "sending electronic messages from a courtroom that contemporaneously describe the trial proceedings and are instantaneously available for public viewing." Source: http://www.citmedialaw.org/legal-guide/live-blogging-and-tweeting-from-court
  • Australia: Rule 116(1) of the AustralianUniform Civil Procedure Rules permit substituted service “where, in effect, there is a practical impossibility of personal service and that the method of service proposed is one which in all reasonable probability, if not certainty, will be effective in bringing knowledge or notice of the proceedings to the attention of the defendant.”2 In effect, attorneys seeking court approval to serve someone via a social networking site would have to demonstrate both 1) an inability to serve the defendant through a more traditional medium, and 2) that service through Facebook offered a reasonable chance of success.In an Australian and possibly world first, two lawyers have won a court order to allow them to serve a default judgment through Facebook. According to a news article on the case, the defendents weren't available at their residence. They no longer worked at the place given in some documents as the last place of their employment. So the plaintiff’s lawyers convinced the court that the service of the default judgment by Facebook had a reasonable prospect of success and that other methods of personal service had failed. This was enough to satisfy the court that Facebook was a sufficient method of communicating with the defendants.Canada:In Knott v. Sutherland (Feb. 5, 2009) Edmonton 0803 002267 (Alta.Q.B.M.), a judge entered an order for “substitutional service,” ruling that the plaintiff could serve one of the multiple defendants by publication by forwarding a copy of the statement of claim to the HR department where the defendant had formerly worked, and by sending notice to the defendant’s Facebook page.7UK: High Court in September 2009 permitted an injunction against an anonymous blogger to be served via Twitter.9 Prominent British lawyer and conservative blogger DonalBlaney sought the injunction after an unknown blogger began impersonating Blaney on the Internet. The imposter set up a Twitter account using Blaney’s own blog photo and links to Blaney’s own blog posts, and then Tweeted in a writing stylesimilar to Blaney himself. While parody can be legally permissible, Blaney took the position that the Twitter account was calculated to make readers think that it was Blaney himself Tweeting, and that the impersonator was infringing Blaney’s copyrighted materials. Rather than wait for Twitter’s California- based site administrators to take down the offending account, Blaney and his barrister, Matthew Richardson, went directly to court to obtain permission to serve the injunction through Twitter. They were fortunate enough to find a techsavvy judge familiar not only with Twitter but also with the December 2008 Australian court’s ruling allowing service by Facebook.Sources: News Article: http://www.smh.com.au/news/technology/biztech/lawyers-to-serve-notices-on-facebook/2008/12/16/1229189579001.htmlhttp://www.texasbar.com/Template.cfm?Section=Current_Issue&Template=/ContentManagement/ContentDisplay.cfm&ContentID=26426
  • Moreno:A young woman in Coalinga, California, 172 Cal. App. 4th 1125, 2009 Cal. App. LEXIS 472 (Cal. App. 5th Dist., 2009), following a visit home from college, penned to her MySpace page “An ode to Coalinga” (the “Ode”).  The Ode opens with “the older I get, the more I realize how much I despise Coalinga” and then proceeds to make a number of extremely negative comments about Coalinga and its residents.  She removed the Ode from her MySpace page within six days of posting it. However, during the six days that the Ode was posted on MySpace, the principal of Coalinga high school discovered the Ode and sent it to his friend, the editor of the local paper, the Coalinga Record. The editor of the Coalinga Record republished the Ode as a “Letter to the Editor,” adding the author’s last name (which was not present on the MySpace page).  The author and her family received death threats, and a shot was fired at the family home, forcing the family to move out of Coalinga.  Due to severe losses, her father closed the 20-year-old family business. They sued the newspaper for invasion of privacy and intentional infliction of emotional distress. Court held: The facts contained in the article were not private. Plaintiff publicized her opinions about Coalinga by posting the article online. By so doing, she made her article available to anyone with Internet access. Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material. Question remanded to trial court: whether defendants actions were outrageous. Confirmed in part, reversed in part.Stengart (March 30, 2010): Plaintiff was involved in discrimination lawsuit against her employer. She subsequently resigned, but the lawsuit continuted. As part of the suit, she was communicating with her lawyer on her company-owned laptop via her password-protected Yahoo email account. Company imaged Platintiff’s hard drive, and was able to access Internet browsing history, including Yahoo email password . Defendants lawyers accessed the account and read communications between Plaintiff and her attorney that occurred prior to Plaintiff’s Resignation. Trial judge found that the emails were not protected by the attorney-client privilege because the company's electronic communications policy put plaintiff on sufficient notice that her emails would be viewed as company property. Supreme court held; Reasonable Expectation of Privacy; atty client privilege not waived; D violated ethical rules by not disclosing they had emails:Under the circumstances, Stengart could reasonably expect that e-mail communications with her lawyer through her personal, password-protected, web-based e-mail account would remain private, and that sending and receiving them using a company laptop did not eliminate the attorney-client privilege that protected them. By reading e-mails that were at least arguably privileged and failing to promptly notify Stengart about them, Loving Care's counsel violated RPC 4.4(b).Although the Policy states that Loving Care may review matters on "the company's media systems and services," those terms are not defined. The prohibition of certain uses of "the e-mail system" appears to refer to company e-mail accounts, not personal accounts. The Policy does not warn employees that the contents of personal, web-based e-mails are stored on a hard drive and can be forensically retrieved and read. It also creates ambiguity by declaring that e-mails "are not to be considered private or personal," while also permitting "occasional personal use" of e-mail. (pp. 12-14)Under all of the circumstances, Stengart could reasonably expect that e-mails exchanged with her attorney on her personal, password-protected, web-based e-mail account, accessed on a company laptop, [*9] would remain private. By using a personal e-mail account and not saving the password, Stengart had a subjective expectation of privacy. Her expectation was also objectively reasonable in light of the ambiguous language of the Policy and the attorney-client nature of the communications. (p.23-25)In concluding that the attorney-client privilege protects the e-mails, the Court rejects the claim that the attorney-client privilege either did not attach or was waived. The Policy did not give Stengart, or a reasonable person in her position, cause to anticipate that Loving Care would be watching over her shoulder as she opened e-mails from her lawyer on her personal, password-protected Yahoo account. Similarly, Stengart did not waive the privilege under N.J.R.E. 530. She took reasonable steps to keep the messages confidential and did not know that Loving Care could read communications sent on her Yahoo account. (pp. 25-27)Employers can adopt and enforce lawful policies relating to computer use to protect the assets and productivity of a business, but they have no basis to read the contents of personal, privileged, attorney-client communications. A policy that provided unambiguous notice [*10] that an employer could retrieve and read an employee's attorney-client communications, if accessed on a personal, password-protected e-mail account using the company's computer system, would not be enforceable. Policy Considerations: Companies right to determine own policy vs Right to Atty/Client Privilege we examine the enforceability of a company policy, which purports to transform private emails or other electronic communications between an employee and the employee's attorney into company property. This requires a balancing of the company's right to create and obtain enforcement of reasonable rules for conduct in the workplace against the public policies underlying the attorney-client privilege. An employer's rules and policies must be reasonable to be enforced. We reject the company's ownership of the computer as the sole determinative fact in determining whether an employee's personal emails may become the company's property. Thyroff recognized that a computer in this setting constitutes little more than a file cabinet for personal communications. 6In M.A., when hired as a bookkeeper, the defendant was advised that the "computers or anything in the office is company property." Id. at 359. Later, after gaining the employer's trust, the defendant installed a secret password and stored personal information in the employer's computer system. The defendant thereafter made a purchase using the employer's credit card and called the employer's payroll company to increase his salary. The defendant was discharged when the employer discovered these thefts. In the context of the criminal proceedings and a police search of the contents of the computer system that followed, the defendant argued he had a reasonable expectation of privacy in the computers. In that context, we held that this expectation was unreasonable, id. at 369, noting that the defendant's "personal information was not the focus of the search; it did not confirm his theft; and the record is silent as to whether it played a role in the indictment." Id. at 366. 7In Doe, we held that an employee did not have a reasonable expectation of privacy when the employer exercised the policy-based right to examine the company computer to determine whether the employee had accessed child pornography. Paragraph 4(a) in the policy in question specifically prohibits the conduct dealt with in Doe and, in light of that subpart's specificity, negates any expectation the employee may have had in engaging in those types of communications. Those legitimate company interests were not implicated here. Although plaintiff's emails to her attorney related to her anticipated lawsuit with the company, the company had no greater interest in those communications than it would if it had engaged in the highly impermissible conduct of electronically eavesdropping on a conversation between plaintiff and her attorney while she was on a lunch break. Regardless of where or how those communications (on the Internet) occur, individuals possess a reasonable expectation that those communications will remain private. A policy imposed by an employer, purporting to transform all private communications into company property -- merely because the company owned the computer used to make private communications or used to access such private information during work hours -- furthers no legitimate business interest. the past willingness of our courts to enforce regulations unilaterally imposed upon employees is not limitless; the moral force of a company regulation loses impetus when based on no good reason other than the employer's desire to rummage among information having no bearing upon its legitimate business interests. the company's ebbing interest in enforcing its regulations, as the means of prying into an employee's private affairs, must be weighed against the employee's considerable interest in maintaining the confidentiality of her communications with her attorney -- a subject to which we now turn. In weighing the attorney-client privilege, which attaches to the emails exchanged by plaintiff and her attorney, against the company's claimed interest in ownership of or access to those communications based on its electronic communications policy, we conclude that the latter must give way. IV Ontario v. Quon:Police sergeant Jeff Quon sued the City of Ontario, CA for violating his workplace privacy rights. Quon claimed that the City conducted a constitutionally banned unreasonable search by reviewing his text messages, despite those messages being sent from a city owned and paid for pager account. Notwithstanding Quon's claim, the trial court ruled that the City of Ontario had not violated his privacy. Quon successfully appealed to the U.S. Court of Appeals, 9th Circuit which reversed the trial court's decision. The City of Ontario has since appealed to the U.S. Supreme Court claiming that Quon did not have an expectation of privacy in his communications. Interestingly, Quon signed a form that acknowledged that his personal communications on his work-issued electronic devices would not be private. Despite signing the form, he utilized a work issued pager to send non-work related messages, including messages that some have deemed sexually explicit.In general, an employer has the right to monitor any electronic communications accessed via employer owned equipment. Internet and Social Media Law is still evolving and the courts have begun to recognize there may be a distinction when an employee accesses personal email and social media accounts utilizing an employer's property. (Source: http://www.shearsocialmedia.com/search?updated-max=2010-01-08T23%3A50%3A00-05%3A00&max-results=5)
  • Unethical:Philadellphia Bar Professional Guidance Committee advisory opinion: The inquirer proposes to ask a third person, someone whose name the witness will not recognize, to go to the Facebook and Myspace websites, contact the witness and seek to “friend” her, to obtain access to the information on the pages. The inquirer believes that the pages maintained by the witness may contain informationrelevant to the matter in which the witness was deposed, and that could be used to impeach the witness’s testimony should she testify at trial. Opinion held: The fact that the actual interaction with the witness would be undertaken by a third party who, the committee assumes, is not a lawyer does not insulate the inquirer from ethical responsibility for the conduct. the inquirer plainly is procuring the conduct, and, if it were undertaken, would be ratifying it with full knowledge of its propriety or lack thereof, as evidenced by the fact that he wisely is seeking guidance from this Committee. Therefore, he is responsible for the conduct under the Rules even if he is not himself engaging in the actual conduct that may violate a rule. Also: Rule 8.4. Misconduct provides in part that, It is professional misconduct for a lawyer to:(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; … (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; … the Committee believes that the proposed course of conduct contemplated by the inquirer would violate Rule 8.4(c) because the planned communication by the third party with the witness isdeceptive. The Committee believes that in addition to violating Rule 8.4c, the proposed conduct constitutes the making of a false statement of material fact to the witness and therefore violates Rule 4.1 as well. http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion_2009-2.pdfIn Pietrylo v. HillstoneRestaurantGroup, two employees created a MySpace page that they used to air their grievances against their employer in a password protected environment and invited other employees -- but not managers -- to join. At some point along the way, one of the managers learned of the site and its sometimes profane content when one of the invited employees showed him a posting from it. That manager told another and then the two of them twice requested the employee's log-in ID and password to the site. Eventually the employee gave them the information and the managers logged into the site a few times before firing the site's creators for damaging employee morale and for violating the restaurant's "core values.“The central issue at trial was whether the employee was coerced into giving the managers her log-in ID and password information to permit them to enter the site. The employee testified that she felt pressure to give the manager her password and that she felt she would have gotten into trouble had she not done so. The court found that the jury had reasonably concluded that the managers had not been authorized to enter the site and refused to toss out their verdict. (http://www.employerlawreport.com/uploads/file/Opinion%209-25-09.pdf)Stored Communications Act (18 S 2701) Sec. 2701. Unlawful access to stored communications (a) Offense.--Except as provided in subsection (c) of this section whoever-- (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section. (b) Punishment.--The punishment for an offense under subsection (a) of this section is-- (1) if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain, or in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or any State-- (A) a fine under this title or imprisonment for not more than 5 years, or both, in the case of a first offense under this subparagraph; and (B) a fine under this title or imprisonment for not more than 10 years, or both, for any subsequent offense under this subparagraph; and (2) in any other case-- (A) a fine under this title or imprisonment for not more than 1 year or both, in the case of a first offense under this paragraph; and (B) a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under this subparagraph that occurs after a conviction of another offense under this section. (c) Exceptions.--Subsection (a) of this section does not apply with respect to conduct authorized-- (1) by the person or entity providing a wire or electronic communications service; (2) by a user of that service with respect to a communication of or intended for that user; or (3) in section 2703, 2704 or 2518 of this title.
  • Blakey: Fellow pilots of Blakey (also a pilot) published a series of harrassing gender-based messages, some of which she alleges are false and defamatory on the pilots on-line computer bulletin board called the Crew Members Forum (“Forum”). The Forum is accessible to all Continental pilots and crew member personnel through the Internet provider, CompuServe. Although Continental may have no duty to monitor the Forum, it is possible that a jury could find that Continental had knowledge, either direct or vicarious through managerial employees, of the content of certain messages posted on the Forum. Court found that the pilot message board was an extended workplace setting and … We believe that severe or pervasive harassment in a work-related setting that continues a pattern of harassment on the job is sufficiently related to the workplace that an informed employer who takes no effective measures to stop it, “sends the harassed employee the message that the harassment is acceptable and that the management supports the harasser.” To repeat, employers do not have a duty to monitor private communications of their employees; employers do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know that such harassment is part of a pattern of harassment that is taking place in the workplace and in settings that are related to the workplace. Simonetti: Simonetti v. Delta Air Lines Inc., No. 5-cv-2321 (N.D. Ga. Sept. 7, 2005), Ellen Simonetti kept a blog called "Diary of a Flight Attendant," on which she posted a range of photographs including one showing her uniform partly unbuttoned, exposing her bra.12 Upon seeing the picture, Delta fired her. Ms. Simonetti sued on a theory of sexual discrimination, alleging that Delta Air Lines did not punish male flight attendants who might have posted similarly inappropriate material on their own blogs.13
  • Clevenstine: Defendant, who was in his late 50s, befriended a family and used that relationship as a means to acquire access to the family's two teenage daughters, whom he allegedly subjected to various sex-related activity. His conduct was discovered when his wife accidentally found, on their computer in defendant's MySpace account, saved instant message communications between defendant and the younger victim revealing sexually explicit discussions and indicating that the two had engaged in sexual intercourse. She separately confronted the younger victim and defendant, both of whom made comments consistent with confirming the sexual activity. About a week later, defendant's wife notified the State Police, and the ensuing investigation eventually resulted in an 11-count superseding indictment, charging six felonies and five misdemeanors for various acts allegedly perpetrated by defendant against the two girls. He was convicted of all 11 counts following a jury trial and sentenced to an aggregate minimum prison term of 24b years Defendant appealedIn re JW:he evidence in this case revolves around several female high school students.  On or about the evening of November 25, 2007, K.H. drove her car to Joshua High School to attend a basketball game.  Her car had no damage at that time.  K.H. parked her car in the lot behind the gym and walked around the building to go in the front entrance.  There K.H. encountered J.W., who was with a female unknown to K.H.  J.W. yelled at K.H., using vulgar language.  K.H. proceeded into the gym, left the game at halftime, and drove home. At school the next day, a friend asked K.H. what had happened to K.H.’s car, and K.H. went to observe that it had scratches.  K.H. reported the damage to David Hoschar, the School Resource Officer, who conducted an investigation. 
  • 2009 Fed. Cts. L. Rev. 1 The Burden of Discovering Inaccessible Electronically Stored Information: Rules 26(b)(2)(B) & 45(d)(1)(D), David K. IsomThe new Federal Rules of Civil Procedure were proposed by the Civil Rules Advisory Committee of the United States Judicial Conference (Committee) and adopted effective December 2006. These new rules relate to discovery of ESI in federal 6 litigation and aim to assist parties, attorneys, experts, and courts in managing the tsunami of ESI used in litigation. The goal is to assure that the burden of litigation information management does not overwhelm the ultimate aim of resolving disputes on the merits. Early in nearly every case now, counsel on both sides of the "v" are faced with the crucial question of how to deal with high volumes of electronic information, and whether significant expense can be saved by postponing or avoiding the need to retrieve and produce burdensome and costly ESI. In many cases, the question is not whether all relevant ESI will be found, produced, and used, but whether the important ESI will be.he central tension in civil litigation is how to balance the burden and cost of discovering ever-increasing types and volumes of relevant electronically stored information (ESI) against the need, benefit, and importance of the information for the litigation to achieve a just, speedy, and cost-effective result. The Federal Rules of Civil Procedure have addressed this tension most directly in new Rules 26(b)(2)(B) and 45(d)(1)(D) -- the inaccessibility rules -- which allow parties and nonparties to refrain from producing relevant, requested, responsive ESI from sources that the parties or nonparties identify as not reasonably accessible because of undue burden or cost. If either the seeker moves to compel production, or the holder resists production by a motion to quash or a motion for protective order, the holder must prove inaccessibility by showing that production of the ESI would be unduly burdensome. If this showing of inaccessibility is made, the court will not order the ESI to be produced unless the seeking party shows good cause for production of the inaccessible ESI. If the showing of good cause is made and the ESI is ordered to be produced, the court may impose conditions upon the production, including cost-shifting and other conditions relating to the method, volume, and format of the production.This article summarizes how the courts, two years after the enactment of these rules, have applied the new rules to balance these crucial competing interests. It shows that some important questions have been answered clearly, some answers are emerging, and some critical issues are still unanswered.
  • Text Messaging Devices… (Flagg v. City of Detroit, 252 F.R.D. 346; 2008 U.S. Dist. LEXIS 64735) the court ruled upon motions by the City and one of the individual defendants seeking to prevent the discovery from going forward.  The moving defendants argued that the federal Stored Communications Act (“SCA”), 18 U.S .C. § 2701 et seq., wholly precludes the production in civil litigation of electronic communications stored by a non-party service provider.  The court rejected this proposed reading of the SCA, observing that “[d]efendants’ position, if accepted, would dramatically alter discovery practice, in a manner clearly not contemplated by the existing rules or law, by permitting a party to defeat the production of electronically stored information created by that party and still within its control – information that plainly is subject to civil discovery, see Fed. R. Civ. P. 34(a)(1) – through the simple expedient of storing it with a third party.”  The court concluded that, because nothing in the plain language of the SCA requires this extraordinary result, and because defendants had not identified any other support for this proposition, the discovery effort contemplated in its March 20, 2008 opinion could go forward (albeit through slightly different means). (http://www.ediscoverylaw.com/2008/08/articles/case-summaries/avoiding-question-of-whether-thirdpartys-compliance-with-subpoena-might-violate-stored-communications-act-court-instructs-plaintiff-to-serve-rule-34-request-for-production-instead/) The court observed that a request for production need not be confined to documents in a party's possession, but instead may properly extend to items that are in that party's “control.”  It noted that the City’s motion was premised upon such control, in that it first asserted that the City had the ability to consent to SkyTel's production of the text messages at issue, but then stating that it was unwilling to do so.  The court continued:Yet, if the City can block the disclosure of SkyTel messages by withholding its consent, it surely follows that it can permit the disclosure of these communications by granting its consent.  This acknowledged power readily qualifies as a “legal right to obtain” the messages held by SkyTel, and hence constitutes “control” within the meaning of Rule 34(a)(1).
  • Horizon Group v. Bonnen (http://www.chicagonow.com/blogs/chicago-bar-tender/Twitter%20lawsuit.pdf) was a libel suit brought by Horizon Realty Group, a Chicago real estate management company, against one of its former tenants, Amanda Bonnen, in Cook County Circuit Court. This case has received extensive publicity and touches on issues such as consumer protection, limits of libel, free speech, and strategic lawsuits against public participation. The lawsuit was dismissed after a judge determined that the actions did not meet the definition of libel. Horizon contended that Bonnen defamed Horizon by posting a “tweet”, or Twitter message, on May 12, 2009, to her friends that said, “You should just come anyway. Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it's ok.” Horizon asked for at least $50,000 for the alleged libel.[On January 21, 2010, Horizon's suit was dismissed, the judge felt the original tweet was too vague to meet the strict definition of libel.One of Bonnen's lawyers said this morning the judge dismissed the case on the grounds that the tweet itself was too vague to fit the legal elements required to prove a libel case.The tweet, said Leslie Ann Reis, "could be innocently construed. It could be construed as her opinion.“ "It mentioned Horizon Realty but it never specified whether it referred to Chicago or Illinois and knowing that Twitter is international, that could pertain to any company that uses the name Horizon," said Reis, who is director of the Center for Information Technology and Privacy Law at John Marshall Law School.That, she said, runs afoul of one of the elements required in proving a libel, that the plaintiff show the defendant made a false statement specifically about the plaintiff. Another requirement is that the statement be published -- which it was, via Twitter -- but the third element asks the plaintiff to prove actual harm from the statement, such as damage to its reputation or negative financial effects.While the publication channel was novel, the legal grounding was not. "This was not a case about Twitter. This was a case about defamation. ... The fact of the matter is that you have to meet all those elements" to prove libel, Reis said. (http://www.chicagobreakingnews.com/2010/01/twitter-mold-libel-defamation-suit-dismissal-cook-county-court.html)Kardashian: It all started when Kardashian recently fired off a cease and desist letter to the cookie maker accusing them of falsely claiming that she was endorsing their brand. The celebrity doctor behind the weight loss program countered by filing his own lawsuit in Miami Dade County, Florida, Tuesday morning  seeking unspecified damages against Kardashian claiming that she made false claims on her Twitter page calling the Cookie Diet ‘unhealthy’. EXCLUSIVE DOCUMENTS: Read The Lawsuit Against Kim Kardashian In his suit, Dr Siegal claims that the Kardashian had ‘commercial motive’ for the attack because she is a spokesperson for a rival weight loss program QuickTrim.
  • Section 230 of the Communications Decency Act grants interactive online services of all types, including blogs, forums, and listservs, broad immunity from tort liability so long as the information at issue is provided by a third party. Relatively few court decisions, however, have analyzed the scope of this immunity in the context of "mixed content" that is created jointly by the operator of the interactive service and a third party through significant editing of content or the shaping of content by submission forms and drop-downs. So what are the practical things you can take away from this guide? Here are five: If you passively host third-party content, you will be fully protected under Section 230.If you exercise traditional editorial functions over user submitted content, such as deciding whether to publish, remove, or edit material, you will not lose your immunity unless your edits materially alter the meaning of the content.If you pre-screen objectionable content or correct, edit, or remove content, you will not lose your immunity.If you encourage or pay third-parties to create or submit content, you will not lose your immunity.If you use drop-down forms or multiple-choice questionnaires, you should be cautious of allowing users to submit information through these forms that might be deemed illegal.To follow recent developments in the law concerning these immunity provisions, see our Section 230 summary page, where you will find background on Section 230, links to our legal guide materials, and feeds showing recent legal threats from our database, blog posts, and news.  Source: http://www.citmedialaw.org/legal-guide/immunity-online-publishers-under-communications-decency-act
  • Courts Weigh: Dendrite Int'l v. Doe, 775 A.2d 756 (N.J. App. Div. 2001). In Dendrite, a corporation brought a defamation action against John Doe defendants for messages posted on a bulletin board, claiming among other things, that the postings negatively affected the value of the corporation's stock. In affirming the trial court's denial of an order compelling the posters' ISP to reveal the defendants' identities, the New Jersey appellate court created a multipart test to be used in deciding whether to permit expedited discovery methods for the identification of anonymous posters: (1) attempt to notify the anonymous posters about the legal proceedings and allow them a reasonable opportunity to respond; (2) specify the exact statements made by the posters; and (3) set forth a prima facie cause of action and produce a substantial showing to support each element of the claim. Thereafter, the court balances the defendant's right of anonymous free speech against the strength of the plaintiff's case and the legal necessity for the disclosure. Other Courts: Several years after Dendrite, the Delaware Supreme Court, in Doe v. Cahill, 884 A.2d 451 (2005), modified the Dendrite test and established the more rigid "summary judgment standard." In short, under the Cahill "summary judgment standard," the plaintiff must make reasonable efforts to notify the anonymous speaker of the discovery request and afford a reasonable time to respond and demonstrate that its cause of action would survive a motion for summary judgment, introducing evidence that creates a genuine issue of material fact for all elements of a defamation claim within the plaintiff's control.State Courts: While not the national standard, a growing number of state courts have followed the Dendrite or Cahill models, with or without modifications, to craft safeguards protecting the anonymity of Internet speakers.[FOOTNOTE 1] Last year, several state courts adopted heightened standards for the identification of anonymous defendants. For example, a Tennessee lower court applied Dendrite's multistep analysis to determine if the plaintiff was entitled to identification of an anonymous blogger who allegedly posted defamatory statements. Swartz v. Doe, No. 08-431 (Tenn. Cir. Ct. Oct. 8, 2009). After considering the factors, the court found that the plaintiff made a substantial legal and factual showing and was entitled to discovery of the blogger's identity, but stayed disclosure after granting the defendant's request for an interlocutory appeal. Similarly, a Maryland appellate court, in Independent Newspapers Inc. v. Brodie, 966 A.2d 432 (Md. Ct. App. 2009), laid out a test that was similar to Dendrite. The Maryland court concluded that too low a threshold "would inhibit the use of the Internet as a marketplace of ideas," but that too high a threshold would "undermine personal accountability and the search for truth by requiring claimants to essentially prove their case before even knowing who the commentator was."[FOOTNOTE 2]Anti-Slapp:nonymous posters who have been identified might still prevail over a plaintiff alleging defamation or invasion of privacy by filing a special motion to strike the complaint based upon the protected nature of their speech. The term SLAPP, or Strategic Lawsuit Against Public Participation, refers to actions that are characterized as having little legal merit but are filed nonetheless to burden opponents with legal defense costs and the threat of liability and to discourage those who might wish to speak out in the future. Anti-SLAPP statutes typically provide protections for speakers in the form of heightened pleading requirements, expedited resolution, a stay in discovery, and in some cases, the availability of attorney's fees and damages for the prevailing defendant.[FOOTNOTE 4] At least 26 states have enacted some form of anti-SLAPP legislation, which offer defendants an expedient procedural method to dismiss meritless, harassing lawsuits whose purpose is to chill protected expression, including internet speech. See e.g., Higher Balance, LLC v. Quantum Future Group Inc., 2008 WL 5281487 (D. Or. Dec. 18, 2008). Anti-SLAPP statutes generally require a two-step inquiry: After the defendant makes a threshold showing that the challenged cause of action is one arising from a protected activity, the plaintiff must make some preliminary showing concerning the merits of the litigation. The safeguards offered under anti-SLAPP statutes differ among the states; instead of blanket immunity from suits based on any form of free speech, the protections depend on the breadth of the statutory language.Source:Online Defamation and Anonymous Defendants,RichardRaysman and Peter Brown, New York Law Journal, February 10, 2010
  • he Digital Millennium Copyright Act, signed into law on October 28, 1998, amended the United States Copyright Act, Title 17 of the U.S. Code, to provide in part certain limitations on the liability of online service providers (OSPs) for copyright infringement. Subsection 512(c) of the Copyright Act provides limitations on service provider liability for storage, at the direction of a user, of copyrighted material residing on a system or network controlled or operated by or for the service provider, if, among other things, the service provider has designated an agent to receive notifications of claimed infringement by providing contact information to the Copyright Office and by posting such information on the service provider’s publicly accessible website.§ 512. Limitations on liability relating to material online11Transitory Digital Network Communications. — A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if — (1) the transmission of the material was initiated by or at the direction of a person other than the service provider;(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and(5) the material is transmitted through the system or network without modification of its content.…..(E) if the person described in paragraph (1)(A) makes that material available online without the authorization of the copyright owner of the material, the service provider responds expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed infringement as described in subsection (c)(3), except that this subparagraph applies only if — (i) the material has previously been removed from the originating site or access to it has been disabled, or a court has ordered that the material be removed from the originating site or that access to the material on the originating site be disabled; and(ii) the party giving the notification includes in the notification a statement confirming that the material has been removed from the originating site or access to it has been disabled or that a court has ordered that the material be removed from the originating site or that access to the material on the originating site be disabled.Limitation on liability. — A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider in a case in which —
  • Publication: “Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.Section 412: RegistrationIn any action under this title [17 USCS Sects. 101 et seq.], other than an action brought for a violation of the rights of the author under section 106A(a) or an action instituted under section 411(b) [17 USCS Sect. 411(b)], no award of statutory damages or of attorney's fees, as provided by sections 504 and 505 [17 USCS Sects. 504 and 505], shall be made for-- (1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work. Getaped:Facts: plaintiff Getaped.com, Inc. ("Getaped") created a website at www.getaped.com to sell Go- Ped(R) brand motorized scooters (the "Getaped site"). Plaintiff spent 400 hours or more over an eight-week period designing and creating the source code for the Getaped site, which went "live”. From at least early summer 2000, defendants copied the Getaped website by posting identical source code at their own sites, www.buyaped.com and www.23water.com. Getaped claims that the replication of the Getaped site at defendants' sites infringed its copyright and diverted traffic and sales from its site. Consistent with the theory espoused by Nimmer and applied by the courts, and consistent with the Copyright Act's definition of "publication," the public display of a work of art or the public performance of a play does not constitute publication. A person does not take any sort of possession or control of a copy of a painting or a play merely by viewing it. By holding that Getaped did not "publish" its website, Judge Ellis likened the website to a public display of a work of art or the public performance of a play Accessing a webpage, however, is not like viewing a painting or watching a play, and Judge Ellis erred in making this equivalence. By accessing a webpage, the user not only views the page but can also view -- and copy - - the code used to create it. [FOOTNOTE 3] In other words, merely by accessing a webpage, an Internet user acquires the ability to make a copy of that webpage, a copy that is, in fact, indistinguishable in every part from the original. Consequently, when a website goes live, the creator loses the ability to control either duplication or further distribution of his or her work. A webpage in this respect is indistinguishable from photographs, music files or software posted on the web -- all can be freely copied. Thus, when a webpage goes live on the Internet, it is distributed and "published" in the same way the music files in Napster or the photographs in the various Playboy decisions were distributed and "published."
  • UDRP:enables the mark’s owner to bring the matter to an arbitrator for a quick resolution of the dispute. The arbitrator will award the domain name to the trademark owner if that owner can prove three things: The domain name is identical or confusingly similar to the owner’s trademark; the current owner of the domain name has no right to or legitimate interest in the domain name; and the current owner of the domain name has registered and is using it in bad faith. AntiCybersquatting Statute:This federal statute creates liability for any entity that, "with a bad faith intent to profit from the goodwill of another’s trademark," registers or uses a domain name that is either identical or confusingly similar to a mark that is distinctive at the time the domain name is registered; or identical, confusingly similar to, or dilutive of a trademark that is famous at the time the domain name is registered. A mark is distinctive if it is arbitrary (rather than descriptive of the company or its goods/services) or is descriptive but has acquired secondary meaning. Secondary meaning exists if a significant percentage of consumers view the mark as indicating the source of goods or services. If a trademark owner wins its suit under this statute, the court can award the trademark owner the disputed domain name. The trademark owner can also get either actual damages or statutory damages of between $1,000 and $100,000 per domain name.In determining whether the domain name registrant has a bad faith intent to profit a court may consider many factors including nine that are outlined in the statute:the registrant’s trademark or other intellectual property rights in the domain name;whether the domain name contains the registrant’s legal or common name;the registrant’s prior use of the domain name in connection with the bona fide offering of goods or services;the registrant’s bona fide noncommercial or fair use of the mark in a site accessible by the domain name;the registrant’s intent to divert customers from the mark owner’s online location that could harm the goodwill represented by the mark, for commercial gain or with the intent to tarnish or disparage the mark;the registrant’s offer to transfer, sell, or otherwise assign the domain name to the mark owner or a third party for financial gain, without having used the mark in a legitimate site;the registrant’s providing misleading false contact information when applying for registration of the domain name;the registrant’s registration or acquisition of multiple domain names that are identical or confusingly similar to marks of others; andthe extent to which the mark in the domain is distinctive or famous.[10]Gripe Sites: The ACPA does not prevent the fair use of trademarks or any use protected by the First Amendment, which includes gripe sites. MAYFLOWER TRANSIT, LLC, Plaintiff, v. DR. BRETT PRINCE, 314 F. Supp. 2d 362; 2004 U.S. Dist. LEXIS 6908; 70 U.S.P.Q.2D (BNA) 1814) The owner claimed, inter alia, that the registration of the Internet domain name "mayflowervanline.com" was in bad faith. The court held that the registrant was not liable under the ACPA as no reasonable fact finder could find that the registrant possessed the requisite bad faith with intent to profit under 15 U.S.C.S. § 1125(d)(1)(a) as the registrant's motive for registering the domain name and posting his criticism was to express his dissatisfaction in doing business with the owner which was protected under the ACPA's safe harbor. Tony La Russ. v. Twitter: Tony La Russa, the manager of the St. Louis Cardinals, is up in arms over the fact that someone other than him tweeted under his likeness and that Twitter permitted it. In fact, he’s so pissed that he’s taking Twitter to court. So what’s the fuss all about? Apparently the individual tweeting as Tony La Russa (@tonylarussa was removed after the lawsuit was filed) made statements that the real Tony didn’t appreciate. So he’s suing Twitter and the causes of action include trademark infringement, trademark dilution, cybersquatting, misappropriation of name and likeness, invasion of privacy, and intentional misrepresentation. “As a direct and proximate result of Defendant’s actions as stated herein, Plaintiff (La Russa) has suffered significant emotional distress, damage to his reputation, and damage to the goodwill of his mark. Suit dismissed in July 09 dismissed with prejudice… Pursuant to Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure, Plaintiff Anthony La Russa hereby dismisses with prejudice all claims in this action against Twitter, Inc., with each party to bear its own costs and attorneys’ fees. No payment was made by Twitter to La Russa in exchange for this dismissal. Twitter, in a blog posting, said there was no settlement. Stone later told The Associated Press in an e-mail that Twitter resolved the account impersonation in accordance with its terms of service. Read more: http://network.nationalpost.com/np/blogs/postedsports/archive/2009/07/07/tony-la-russa-drops-lawsuit-against-twitter.aspx#ixzz0fGiHTB65
  • Legal action should be taken only in consultation with senior management, marketing and corporate communications team, as frequently taking legal action can lead to greater damage to the client than the original infringement. This is a video that has received widespread play on YouTube after the law Firm, Nixon Peabody “got legal” after it learned that bloggers were making fun of it’s new theme song, created in response to a high-profile win. Nixon Peabody succeeded in getting YouTube to take down the initial song…. But bloggers and the press had a field day. Had NixonPeabody done nothing, the initial posting would not have amounted to anything. This is a cautionary tale that the medicine can offer do more harm than the initial ill…
  • New York: 2. Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of: a. an individual's political activities outside of working hours, off of the employer's premises and without use of the employer's equipment or other property, if such activities are legal, provided, however, that this paragraph shall not apply to persons whose employment is defined in paragraph six of subdivision (a) of section seventy-nine-h of the civil rights law, and provided further that this paragraph shall not apply to persons who would otherwise be prohibited from engaging in political activity pursuant to chapter 15 of title 5 and subchapter III of chapter 73 of title 5 of the USCA; b. an individual's legal use of consumable products prior to the beginning or after the conclusion of the employee's work hours, and off of the employer's premises and without use of the employer's equipment or other property; c. an individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property; or d. an individual's membership in a union or any exercise of rights granted under Title 29, USCA, Chapter 7 or under article fourteen of the civil service law. California: SS 98.6. (a) No person shall discharge an employee or in any manner discriminate against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the employee or applicant for employment has filed a bona fide complaint or claim or instituted or caused to be instituted any proceeding under or relating to his or her rights, which are under the jurisdiction of the Labor Commissioner, or because the employee has initiated any action or notice pursuant to Section 2699, or has testified or is about to testify in any such proceeding or because of the exercise by the employee or applicant for employment on behalf of himself, herself, or others of any rights afforded him or her. North Dakota: Makes it a discriminatory practice for an employer to fail or refuse to hire a person; to discharge an employee; or to treat a person or employee adversely or unequally with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, or a term, privilege, or condition of employment, because of participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer.
  • http://www.finra.org/web/groups/industry/@ip/@reg/@notice/documents/notices/p120779.pdfRecordkeeping Responsibilities Q1: Are firms required to retain records of communications related to the brokerdealer’s business that aremade through socialmedia sites?A1: Yes. Every firmthat intends to communicate, or permit its associated persons to communicate, through socialmediasitesmust first ensure that it can retain records of those communications as required by Rules 17a-3 and 17a-4 under the Securities Exchange Act of 1934 and NASD Rule 3110. SEC and FINRA rules require that for record retention purposes, the content of the communication isdeterminative and a broker-dealermust retain those electronic communications that relate to its “business as such.” 7Suitability ResponsibilitiesQ2: If a firmor its personnel recommends a security through a socialmedia site, does this trigger the requirements of NASD Rule 2310 regarding suitability? A2: Yes.Whether a particular communication constitutes a “recommendation” for purposes of Rule 2310 will depend on the facts and circumstances of the communication. Firms should consult Notice to Members (NTM) 01-23 (Online Suitability) for additional guidance concerning when an online communication falls within the definition of “recommendation” under Rule 2310. Q3: What factors should firms consider when developing procedures for supervising interactive electronic communications on a socialmedia site that recommend specific investment products? A3: Communications that recommend specific investment products often present greater challenges for a firm’s compliance programthan other communications. As discussed above, theymay trigger the FINRA suitability rule, thus creating possible substantive liability for the firmor a registered representative. These communicationsmust often include additional disclosure in order to provide the customer with a sound basis for evaluating the facts with respect to the product. They alsomight trigger other requirements under the federal securities laws.8 FINRA has brought disciplinary actions regarding interactive electronic communications that ntainedmisleading statements about investment products that the communications recommended.9Supervision of SocialMedia Sites Q6: Howmust firms supervise interactive electronic communications by the firmor its registered representatives using blogs or social networking sites?A6: The content provisions of FINRA’s communications rules apply to interactive electronic communications that the firmor its personnel send through a social media site.While prior principal approval is not required under Rule 2210 for interactive electronic forums, firmsmust supervise these interactive electronic communications under NASD Rule 3010 in amanner reasonably designed to ensure that they do not violate the content requirements of FINRA’s communications rules.13 Q7: What restrictions should firms place on which personnelmay establish an account with a socialmedia site? A7: Firmsmust adopt policies and procedures reasonably designed to ensure that their associated persons who participate in socialmedia sites for business purposes are appropriately supervised, have the necessary training and background to engage in such activities, and do not present undue risks to investors. Firmsmust have a general policy prohibiting any associated person fromengaging in business communications in a socialmedia site that is not subject to the firm’s supervision. Firms alsomust require that only those associated persons who have received appropriate training on the firm’s policies and procedures regarding interactive electronic communicationsmay engage in such communications. ..Third-Party Posts Q8: If a customer or other third party posts content on a socialmedia site established by the firmor its personnel, does FINRA consider the third-party content to be the firm’s communication with the public under Rule 2210? A8: As a generalmatter, FINRA does not treat posts by customers or other third parties as the firm’s communication with the public subject to Rule 2210. Thus, the prior principal approval, content and filing requirements of Rule 2210 do not apply to these posts. Q9: Must a firmalso use a disclaimer to informcustomers that third-party posts donot reflect the views of the firmand have not been reviewed by the firmfor completeness or accuracy? A9: Assuming the disclaimer was sufficiently prominent to informinvestors of the firm’s position, such a disclaimer would be part of the facts and circumstances that FINRA would consider in an analysis of whether a firmhad adopted or become entangled with a posting. Q10: Must a firmmonitor third-party posts? A10: FINRA does not consider a third-party post to be a firmcommunication with the public unless the firmor its personnel either is entangled with the preparation of the third-party post or has adopted its content. Nevertheless, FINRA has found through its discussions withmembers of the Social Networking Task Force and others that many firmsmonitor third-party posts on firmWeb sites. For example, some firmsmonitor third-party posts tomitigate the perception that the firmis adopting a third-party post, to address copyright issues or to assist compliance with the “Good Samaritan” safe harbor for blocking and screening offensive material under the Communications Decency Act.16

The Practicing Lawyers Guide To Social Media The Practicing Lawyers Guide To Social Media Presentation Transcript

  • 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
    http://newsimg.bbc.co.uk/media/images/44622000/jpg/_44622679_footprint2_203.jpg
  • 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 Places
    A Nielsen report on Social Networking’s
    New 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
    http://www.twitterfools.com/wp-content/uploads/2009/12/Twitter_2010-150x150.jpg
    Source: Gartner Group, 2010, http://www.gartner.com/it/page.jsp?id=1293114
  • Lawyers & Social Media
    How lawyers are using social media
  • 2008
    2009
    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
    Are You A Member of an Online Social Network?
    % Yes
    % Yes
    Question: Are you a member of an online social network such as LinkedIn, Plaxo, Facebook, Xing or MySpace?
    N
    CC: 710
    OC: 764
    Leader Networks (c) 2009
    Age
    8
    Leader Networks (c) 2009
    8
  • 2008
    2009
    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
    % Yes
    Response by Role
    Age
    N
    CC: 710
    OC: 764
    Question: Would you be interested in joining an online professional network designed specifically for lawyers?
    9
    Leader Networks (c) 2009
    NOTE: Response Options Changed in 2009 from Yes/No/Don’t Know to Yes/No/Already Belong
  • Corporate Counsel Cite Low Costs And Increased Visibility
    Among Peers as Primary Reasons to Network Online
    Corporate Counsel
    Note: Item names have been shortened for display purposes
    Question: What do you think are the top advantages of participating in an online legal professional network? Select up to three.
    N
    CC: 710
    OC: 764
    10
    10
    Leader Networks (c) 2009
  • Primary Professional Networking Activities for Lawyers
    Utilizing Online Legal Business Tools
    • Preferred provider management
    • Integrated search
    • Client ratings
  • 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
    14
  • 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 7.2regulates 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?
    Serena WIlliams
    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
  • 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 Defenderloses 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
    Convictseeks new trial over prosecutor’s Facebook entries
    http://www.uslaw.com/library/Law_Humor/Court_Reporter_Messed.php?item=100921
    http://www.astcweb.org/public/publication/article.cfm/1/21/6/Why-Jurors-Turn-to-the-Internet
  • 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.
    …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 networking
    websites, including Facebook, My Space, LinkedIn, and YouTube….
    http://www.wired.com/images_blogs/threatlevel/2010/02/juryinstructions.pdf
  • 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.
    [Jeremy Bruneel / Stocko.cc]
    Source: Live Blogging & Tweeting From Court, Citizens Law Media Project, Dec 10, 2009
  • Proof of Service Facebook-Style
    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 DonalBlaney.
    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?
    http://www.ourchurch.com/images/ne1-hand-out-of-comp.jpg
  • 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)
    http://communications.uml.edu/sunrise/media/internet-privacy.jpg
  • 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
    http://www.eucommerz.com/uploads/data-protection2.jpg
    Source: http://ec.europa.eu/justice_home/fsj/privacy/docs/wpdocs/2009/wp163_en.pdf
  • 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
    Source: http://www.holytaco.com/25-most-embarrassing-facebook-updates
  • 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))
    http://yougiveloveabad.name/wp-content/uploads/2008/11/access_denied_guy.png
  • 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
    http://lishacauthen.files.wordpress.com/2009/03/eavesdropping-1.jpg
  • “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
    http://blog.us.cision.com/wp-content/uploads/2009/12/SM-Policy-Image.bmp
  • 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.
    http://law2point0.com/wordpress/wp-content/uploads/2009/04/bigstockphoto_data_security_2346522.jpg
  • 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 Kardashiansued 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?
    • 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)
    http://julianhopkins.net/uploads/jh_pic_081021_BloggerCartoon04.JPG
    Source: Online Defamation and Anonymous Defendants, Richard Raysman and Peter Brown, New York Law Journal, February 10, 2010
  • 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
    http://www.crunchgear.com/wp-content/uploads/2008/11/moe_apple.png
  • 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 rights
    http://farm1.static.flickr.com/152/4088196335_9e1eca50a9.jpg
    Source: Copyright Protection on Social Networking Sites, Ryan W. O'Donnell And Aneesh Mehta The Legal Intelligencer, March, 2010
  • 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
    http://www.ipadrblog.com/blackberry.jpg
  • 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 Resolution
    Source: 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 Policies
    Reducing 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.
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