Are Law Firms’ Tweets Impermissible Advertising

The Law Society of Upper Canada publishes Practice Management Guidelines that include advice on the use of technology. Section 5.8.4 of the Guidelines say that the following practice is “not compatible with the public interest, the best interests of the profession or the administration of justice”:

advertisement of professional services using electronic media where the advertisement is directly and indiscriminately distributed to a substantial number of newsgroups or electronic email addresses.

This is clearly aimed at spam. However, a recent overview of technology and legal ethics* said that lawyers should also consider

whether the circulation of links via mechanisms such as Twitter or RSS feeds could constitute the circulation of marketing materials ‘directly and indiscriminately … to a substantial number’ of recipients

Does this sound like a risk to you? Does either adverb apply to Twitter? If I tweet, I post to Twitter.com, not to anyone’s personal or business address. If people follow me, they may go to the same site to read my tweets, or they may set up a system to send my tweets on to some more convenient place to read them. But that’s their system, not mine, so is it not indirect rather than direct on my part? And it is not indiscriminate because my followers decide – by exercising their powers of discrimination – to follow me or not.

Would it make a difference if I automatically directed all my tweets to my Facebook page, which I have set to be accessible to the public? Would I be more compliant with the Guidelines if I had the FB page set to be readable only by friends, on the basis that the friending process is not indiscriminate?

RSS feeds may be a direct distribution, but they operate only where someone has requested them, which should take them out of the ‘indiscriminate’ class.

And is it fair to read the Guidelines’ “a substantial number of newsgroups or electronic email addresses” as meaning “a substantial number of recipients“? If I post to a blog (at a single address) or a FB page (at a single address) and many people come to read my marketing material (cleverly done up as legal analysis, possibly, but even if a straight-out advertisement), do their numbers put me in violation of the Guideline? Is there not a strong argument that this provision of the Guidelines are aimed at spam and not at any technique that happens to succeed in reaching a lot of people because a lot of people are actively interested or visit a single address.

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* Tarantino and Ha-Redeye, “Overview: the Rules of Professional Conduct and their Application to the Legal Profession Online (and Off)”, (2012), 12 Internet and E-Commerce Law in Canada 109, 113 (March 2012 number).