The Perils of Social Media Under the Laws of the United States and Canada: A Cautious Tale for Lawyers and Clients
These are notes are from a panel presentation session at the American Bar Association 2011 conference in Toronto last Thursday. Panelists included Dominique Shelton, Wildmon Harrold, Beverly Hills, CA, Prof. Teresa Scassa, University of Ottawa, Research Chair of Information Law, Ottawa, ON, Dr. Ann T. Greeley, DecisionQuest, and Nicole Black, Rochester, NY . Note: these are my selected notes from this session; any inaccuracies or omissions are my own. I welcome your comments and follow-up thoughts!
Dominique Shelton – Overview on what is social media
Social media often involves the creation of “user generated content”, which often takes bits and pieces of things created by others. This is why social media often gets into intellectual property issues.
Types of User Generated Content Sites:
- Wiki sites
- User generated advertisements e.g. Doritos and Pepsi MAX “Crash the Superbowl” contest; Lipton Brisk’s Facebook account teaming up with rapper Eminem “Anti-ad”
- In the mobile sphere: Twitter
- authorized and unauthorized mashups such as photographs, video, music put together without permission clearance. Serena software often includes mashups on the back end
- MMOG (“massively multiplayer online games”) and virtual worlds e.g. Starbucks site within Second Life virtual world. In online game World of Warcraft and others there are over 13 million participants. Exchange of money in these sites can mean some litigation. In 2014 this market is expected to reach $96 billion.
FTC Privacy Report, December 2010: Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers [pdf]
Online behavioural advertising (OBA)
- Online behavioural advertising (OBA) uses tracking to determine what kinds of advertising to serve up to the website viewer.
- The Privacy Commissioner of Canada’s definition of “behavioural advertising” is particularly helpful. [Connie’s note: see Report on the 2010 Office of the Privacy Commissioner of Canada’s Consultations on Online Tracking, Profiling and Targeting, and Cloud Computing, Office of the Privacy Commissioner of Canada, May 2011]
- The lawsuits are happening are around “flash cookies” and HTML5 code; cannot use the browsers to disable them because they are hard-coded in and almost impossible to identify.
- Types of claims in the US: behavioural lawsuits e.g. NBC and Warner Bros Records sued due to tracking widgets; there are also mobile class actions pending and some of the ad servers are being sued.
“Privacy by design”
- Concept was created in Canada
- Gives users notice that tracking of their movement on the Internet is going on
- In-Ad notices or “hyper notices” are implemented so that it is not just covered in a blanket user agreement; people are specifically notified when being followed.
- The European Advertising Standards Alliance (EASA) also has some best practice material around this: EASA Best Practice Recommendation on Online Behavioural Advertising
- Will tracking users online be considered infringement of personal privacy?
Things to do:
- Find out whether the client is using flash cookies
- Sensitize them to the issues
- Be up to date on industry standards
- Ask questions of your vendors
Prof. Teresa Scassa, University of Ottawa – Social networking: Privacy and Trademark Issues
Office of the Privacy Commissioner of Canada does a lot of work in this area.
Civil litigation in Canada:
- do not have the same volume of litigation in Canada as in the US
- courts have ordered access to metadata regarding the amount of time or use of social networking sites; also content from social networking sites has been ordered to be disclosed
- On pages that are considered public, there are no privacy issues.
- 2 lines of jurisprudence in Canada: if there is content on the public pages that infer there may be content of interest on the private side; some people use the features of Facebook to reveal private information to only certain people
Sparks v. Dube raised interesting issues around preservation orders
- Court considered ex parte motion for preservation order
- defendant sought court order to compel plaintiff to download the content of her social networking site under direct supervision (rather than just not update the site)
- there were photos on the public side of the site that showed activities that contradicted injuries she was purported to have;
- court granted the order with some adjustment
Trademarks & social networking:
Use of trademarks on social networking sites has risk:
- the risk of use of another’s trademark in a user name or sub-domain; impersonation of celebrities
- borderless Internet and national trademark; there can be many people entitled to the same trademark
- things can go viral very quickly; some companies have found in over-reacting to what they see as trademark infringement can create a backlash against the trademark owner
- there are unlimited variations on marks. It is not enough of a solution to buy every domain name you want.
Facebook and Twitter:
- both have policies on intellectual property protection (for registered trademarks; not unregistered)
- suspected trademark infringement can be reported to Facebook
- Twitter does not permit non-parodic impersonation, but does allow parody
- Monitor use of their trademarks
- Develop an appropriate and considered response in advance.
Dr. Ann T. Greeley, DecisionQuest – Social Media in the Courtroom
Through social media, we now have unprecedented access to public’s conversations, attitudes and opinions. Jurors can’t help themselves: just like all of us, they take in as much information as they can. The use of social media during a trial has become an issue. This is not surprising: 6 out of 10 US citizens get news from the Internet; online news is now more popular than newspapers or radio. In the US, jurors can talk about trials after the court case, and there are starting to be people creating blogs after the fact.
Researching potential jurors
Social media now allows us to find out what people are thinking; in the US they can do research on the potential jurors before the trial.
Best practices for researching a potential juror:
- determine the most influential sources
- determine if someone is pro-plaintiff or pro-defence
- qualitative analysis of attitudes, opinions and beliefs
- conduct quantitative analysis of readers’ comments
- prepare strategic recommendations for jury research, voir dire questionnaires, witness preparation, etc.
People can creating personas for blogs, and creating fake reviews. How can you know what is true? In researching jurors, looking at social media sites, public records, court materials, news sources, and others.
Accessing information by jurors outside of the courtroom
There are “stealth jurors” – people who wish they were jurors or talk as if they were jurors.
Search “jury duty” and “guilty” or “jury duty” and “innocent” on Twitter – you can see general comments on what people are saying when they are waiting to be chosen for jury duty or are on a jury. Can do similar on Facebook.
Nicole Black, Rochester, New York – Ethical pitfalls of social media
Social media can be used by lawyers in a lot of positive ways, but there are pitfalls.
Some ethical pitfalls:
- Lawyer Advertising rules – the ABA Commission on Ethics 20/20 was created to address online issues
- If you think what you are putting up might be advertising, a disclaimer may be required. When in doubt, put up the disclaimer (e.g. for informational blogs)
- inadvertently creating an attorney-client relationship; for example, from her blog she gets a lot of inquiry email. There is a need to take care if responding; she recommends responding generally, pointing them to other information rather than advice, and using disclaimers.
- disclosing confidential information
- improper contact with other parties. There should be no deceptive Facebook friending; you can’t have your paralegal friend somebody to find out information about them. Always disclose who you are.
- improper client solicitation – when responding for a request for information, that is not a solicitation. But there should be no “ambulance chasing” on Twitter!
- on LinkedIn, stating a “specialization” – in a lot of jurisdictions in the US, you cannot specialize in your law practice, this could violate your rules
- for LinkedIn and other profile sites – in South Caroline, once you claim your profile, you are responsible for what is put up on your site including recommendations from clients
- No ex parte communications – In Florida judges cannot friend lawyers with hearings in front of them; however, they are in the minority
You need to balance the benefits and risks. You also need to learn about social media.