Copyright 2010 Francine D. Ward.   All Rights Reserved.   1




LIONS, TIGERS & FRIENDS:
LEGAL ISSUES RESULTING
FROM PLAYI...
2
                Objectives
    • Identify Social Media Legal Landmines
    • Potential Ethical Landmines




      Copyr...
3   Legal Landmines…




    Copyright 2010 Francine Ward.   All Rights Reserved.
Landmine #1
4




           Not having a
         Social Media Use
               Policy


    Copyright 2010 Francine Wa...
What goes in the policy?
5



    1.    Define what is included in “social media”,
          e.g., blogging, tweeting, bro...
Who should know about the policy?
6



      1.    Staff
      2.    Temporary staff
      3.    Independent contractors
 ...
Landmine #2
7




       Not communicating
            the policy



    Copyright 2010 Francine Ward.   All Rights Reserv...
Landmine #3
8




               Not enforcing
                the policy



    Copyright 2010 Francine Ward.   All Right...
Landmine #4
9




                Thinking
             Delete = Delete



    Copyright 2010 Francine Ward.   All Rights ...
Landmine #5
10




            Making defamatory
              statements on
             social media sites



     Copyr...
Landmine #6
11




           Making false &
       misleading statements
           regarding your
         products/serv...
Landmine #7
12




                     Copyright
                   Infringement



     Copyright 2010 Francine Ward.   ...
Landmine #8
13




                   Trademark
                  Infringement




     Copyright 2010 Francine Ward.   Al...
Landmine #9
14




                   Not
             Protecting Your
      Content – making sure you own
         what y...
Copyright Ownership
15




       The general rule is that the copyright
       owner is the person who creates the
      ...
16




     Work Made for Hire



      Copyright 2010 Francine Ward.   All Rights Reserved.
17




        What happens when
      content is created on top
       of existing content, i.e.
       Facebook, Second ...
Landmine #10
18




                  Not reading &
                  understanding
                  “Terms of Use”
     ...
Meaning of Selected Provisions
19




      You give us all rights necessary to enable your
      application to work with...
Second Life “Terms of Use”
20



     3.2 You retain copyright and other intellectual
     property rights with respect to...
Summary
21




     1.   Have, communicate, enforce a Social Media Use
          policy
     2.   Think before you Tweet, ...
22   Ethical Landmines




     Copyright 2010 Francine Ward.   All Rights Reserved.
Ethical Landmines
23




     1.     Unauthorized Practice of Law
     2.     Advertising and Solicitation
     3.     Com...
Ethical Landmine #1
24




       CA Rule 1-300 Unauthorized Practice of Law
     A. A member shall not aid any person or ...
Ethical Landmine #2
25



                CA Rule 1-400 Advertising & Solicitation
     A.   For purposes of this rule, "c...
… Rule 1-400 continued
26



     B. For purposes of this rule, a "solicitation" means any
        communication:
        ...
… Rule 1-400 continued
27




     C. A solicitation shall not be made by or on behalf
        of a member or law firm to ...
… Rule 1-400 continued
28


     E. The Board of Governors of the State Bar shall formulate and adopt
        standards as...
Ethical Landmine #3
29


              CA Rule 2-100 Communication With a Represented Party
     A. While representing a c...
Ethical Landmine #4
30


                     CA Rule 3-100 Confidential Information of a Client
     A. A member shall no...
Relevant California State Bar Ethical Opinions
31




      1. Attorney Advertising – 2001-155

      2. Attorney/Client P...
Francine D. Ward, Esq.
32


                    Feel free to contact me in any number of ways:

                          ...
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Lions, Tigers & Friends: Legal Issues in the Social Media Sandbox! Francine Ward, Attorney

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Social Media Attorney, Francine Ward, discusses several landmines when it comes to social media in a corporate environment. She discusses having and enforcing a social media policy, copyright law, and a variety of other topics that all corporations should avoid and be mindful of when it comes to their presence (and employees presence) online.

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Lions, Tigers & Friends: Legal Issues in the Social Media Sandbox! Francine Ward, Attorney

  1. 1. Copyright 2010 Francine D. Ward. All Rights Reserved. 1 LIONS, TIGERS & FRIENDS: LEGAL ISSUES RESULTING FROM PLAYING IN THE SOCIAL MEDIA SANDBOX! American Bar Association | Annual Conference August 5-8, San Francisco, CA
  2. 2. 2 Objectives • Identify Social Media Legal Landmines • Potential Ethical Landmines Copyright 2010 Francine Ward. All Rights Reserved.
  3. 3. 3 Legal Landmines… Copyright 2010 Francine Ward. All Rights Reserved.
  4. 4. Landmine #1 4 Not having a Social Media Use Policy Copyright 2010 Francine Ward. All Rights Reserved.
  5. 5. What goes in the policy? 5 1. Define what is included in “social media”, e.g., blogging, tweeting, browsing Facebook, Myspace, virtual worlds, etc. 2. Let them know what you expect 3. Let them know what is a breach of the policy 4. Explain there is no “expectation of privacy” 5. Inform them that you will monitor their email, computer, telephone, cell phone, laptop Copyright 2010 Francine Ward. All Rights Reserved.
  6. 6. Who should know about the policy? 6 1. Staff 2. Temporary staff 3. Independent contractors 4. Clients with access to your computers 5. Project Collaborators Copyright 2010 Francine Ward. All Rights Reserved.
  7. 7. Landmine #2 7 Not communicating the policy Copyright 2010 Francine Ward. All Rights Reserved.
  8. 8. Landmine #3 8 Not enforcing the policy Copyright 2010 Francine Ward. All Rights Reserved.
  9. 9. Landmine #4 9 Thinking Delete = Delete Copyright 2010 Francine Ward. All Rights Reserved.
  10. 10. Landmine #5 10 Making defamatory statements on social media sites Copyright 2010 Francine Ward. All Rights Reserved.
  11. 11. Landmine #6 11 Making false & misleading statements regarding your products/services Copyright 2010 Francine Ward. All Rights Reserved.
  12. 12. Landmine #7 12 Copyright Infringement Copyright 2010 Francine Ward. All Rights Reserved.
  13. 13. Landmine #8 13 Trademark Infringement Copyright 2010 Francine Ward. All Rights Reserved.
  14. 14. Landmine #9 14 Not Protecting Your Content – making sure you own what you think you own! Copyright 2010 Francine Ward. All Rights Reserved.
  15. 15. Copyright Ownership 15 The general rule is that the copyright owner is the person who creates the original work of art/authorship. EXCEPT … where there’s a contract or it’s a Copyright 2010 Francine Ward. All Rights Reserved.
  16. 16. 16 Work Made for Hire Copyright 2010 Francine Ward. All Rights Reserved.
  17. 17. 17 What happens when content is created on top of existing content, i.e. Facebook, Second Life, Twitter. Who owns it? Copyright 2010 Francine Ward. All Rights Reserved.
  18. 18. Landmine #10 18 Not reading & understanding “Terms of Use” BEFORE you accept them Copyright 2010 Francine Ward. All Rights Reserved.
  19. 19. Meaning of Selected Provisions 19 You give us all rights necessary to enable your application to work with … , including the right to: 1. incorporate your content into streams, profiles, and user action stories; 2. place content, including ads, around your application. Copyright 2010 Francine Ward. All Rights Reserved.
  20. 20. Second Life “Terms of Use” 20 3.2 You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law. However, you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification, to Linden Lab and to other users of Second Life. .. Copyright 2010 Francine Ward. All Rights Reserved.
  21. 21. Summary 21 1. Have, communicate, enforce a Social Media Use policy 2. Think before you Tweet, Blog, or post to a Chat 3. Get permission 4. Tell the truth about your products/service 5. Know that delete DOES NOT = DELETE 6. Read Terms of Use carefully Copyright 2010 Francine Ward. All Rights Reserved.
  22. 22. 22 Ethical Landmines Copyright 2010 Francine Ward. All Rights Reserved.
  23. 23. Ethical Landmines 23 1. Unauthorized Practice of Law 2. Advertising and Solicitation 3. Communicating with a Represented Party 4. Conflicts of Interest 5. Disclosure of Confidential Information Copyright 2010 Francine Ward. All Rights Reserved.
  24. 24. Ethical Landmine #1 24 CA Rule 1-300 Unauthorized Practice of Law A. A member shall not aid any person or entity in the unauthorized practice of law. B. A member shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction. Copyright 2010 Francine Ward. All Rights Reserved.
  25. 25. Ethical Landmine #2 25 CA Rule 1-400 Advertising & Solicitation A. For purposes of this rule, "communication" means any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client, including but not limited to the following: 1. Any use of firm name, trade name, fictitious name, or other professional designation of such member or law firm; or 2. Any stationery, letterhead, business card, sign, brochure, or other comparable written material describing such member, law firm, or lawyers; or 3. Any advertisement (regardless of medium) of such member or law firm directed to the general public or any substantial portion thereof; or 4. Any unsolicited correspondence from a member or law firm directed to any person or entity. Copyright 2010 Francine Ward. All Rights Reserved.
  26. 26. … Rule 1-400 continued 26 B. For purposes of this rule, a "solicitation" means any communication: 1. Concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain; and 2. Which is: a) delivered in person or by telephone, or b) directed by any means to a person known to the sender to be represented by counsel in a matter which is a subject of the communication. Copyright 2010 Francine Ward. All Rights Reserved.
  27. 27. … Rule 1-400 continued 27 C. A solicitation shall not be made by or on behalf of a member or law firm to a prospective client with whom the member or law firm has no family or prior professional relationship, unless the solicitation is protected from abridgment by the Constitution of the United States or by the Constitution of the State of California. A solicitation to a former or present client in the discharge of a member's or law firm's professional duties is not prohibited. Copyright 2010 Francine Ward. All Rights Reserved.
  28. 28. … Rule 1-400 continued 28 E. The Board of Governors of the State Bar shall formulate and adopt standards as to communications which will be presumed to violate this rule 1-400. The standards shall only be used as presumptions affecting the burden of proof in disciplinary proceedings involving alleged violations of these rules. "presumption affecting the burden of proof" means that presumption defined in Evidence Code sections 605 and 606. Such standards formulated and adopted by the Board, as from time to time amended, shall be effective and binding on all members. F. A member shall retain for two years a true and correct copy or recording of any communication made by written or electronic media. Upon written request, the member shall make any such copy or recording available to the State Bar, and, if requested, shall provide to the State Bar evidence to support any factual or objective claim contained in the communication Copyright 2010 Francine Ward. All Rights Reserved.
  29. 29. Ethical Landmine #3 29 CA Rule 2-100 Communication With a Represented Party A. While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer B. For purposes of this rule, a "party" includes: 1. An officer, director, or managing agent of a corporation or association, and a partner or managing agent of a partnership; or 2. An association member or an employee of an association, corporation, or partnership, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization. C. This rule shall not prohibit: 1. Communications with a public officer, board, committee, or body; or 2. Communications initiated by a party seeking advice or representation from an independent lawyer of the party's choice; or 3. Communications otherwise authorized by law. Copyright 2010 Francine Ward. All Rights Reserved.
  30. 30. Ethical Landmine #4 30 CA Rule 3-100 Confidential Information of a Client A. A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in paragraph (B) of this rule. B. A member may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual. C. Before revealing confidential information to prevent a criminal act as provided in paragraph (B), a member shall, if reasonable under the circumstances: 1. make a good faith effort to persuade the client: (i) not to commit or to continue the criminal act or (ii) to pursue a course of conduct that will prevent the threatened death or substantial bodily harm; or do both (i) and (ii); and 2. inform the client, at an appropriate time, of the member's ability or decision to reveal information as provided in paragraph (B). D. In revealing confidential information as provided in paragraph (B), the member's disclosure must be no more than is necessary to prevent the criminal act, given the information known to the member at the time of the disclosure. E. A member who does not reveal information permitted by paragraph (B) does not violate this rule. Copyright 2010 Francine Ward. All Rights Reserved.
  31. 31. Relevant California State Bar Ethical Opinions 31 1. Attorney Advertising – 2001-155 2. Attorney/Client Privilege – 2003-161 3. Web site Disclaimers – 2005-168 4. Chat Room Discussions – 2004-166 Copyright 2010 Francine Ward. All Rights Reserved.
  32. 32. Francine D. Ward, Esq. 32 Feel free to contact me in any number of ways: Francine D. Ward Law Ofc. Of Francine D. Ward 775 E. Blithedale, Suite 325 Mill Valley, CA 94941 (415) 389-0975 (415) 389-0976 [fax] info@fwardlawyer.com www.twitter.com/francineward www.facebook.com /Francineward (Business | Intellectual Property Lawyer) Copyright 2010 Francine Ward. All Rights Reserved.

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