A Book Review: Paul Lomic, Social Media and Internet Law: Forms and Precedents

What is it about social media that make them such a hot topic these days, even for lawyers, as this new book demonstrates? I suggest it’s all the people. Other areas of technology can be dry or technical or mystifying, other areas of law can be the realm of big corporations or telecoms or governments. Social media combine cutting-edge technology with real human beings just doing what we do – spouting ideas, going places, making pictures, telling stories. The topic is more about us than most of the others in law or technology.

Social media do not have all their own law, however. The usual laws that apply to people doing anything apply to them online and on social media. Social media law sits on top of Internet law, since all social media rely on the Internet to work, and Internet law in turn branches into commercial, IP, privacy, labour and other fields.

Paul Lomic, a civil litigator, has assembled an experienced group of Toronto practitioners to tell us about the law of social media and to show lawyers how to practise it, with forms and precedents. The result is a pretty useful introductory guide that should help orient those who have not thought much about it, and refresh the perspective of those who have. The style is accessible, the law is accurate (though of course in this field more than most, subject to change) and the precedents a good cross-section of what one is likely to need. Besides their printed versions, the precedents come on a CD to make them easier to use.

One of the principal uses people make of social media is to communicate with the world – starting with family, friends and co-workers. It is not surprising that much of the focus of the book is on the impact of these self-directed communications. Three early chapters deal with employment issues, including why and how employers should establish social media policies and how both employers and employees can get into trouble without them. Such policies come up again in the chapter on defamation and in the chapter on intellectual property. Clearly social media make it harder than it used to be to get employees to control their speech.

Another chapter deals with social media and marketing, with special attention to games and contests on different platforms. The privacy chapter provides a very thorough and expert discussion of several aspects of the field, though it does not particularly set out the impact of privacy rules on social media users apart from anyone else. It includes a review of Canada’s anti-spam legislation (CASL), which reappears in the following chapter on e-commerce. A final chapter touches on civil litigation, where social media affect discovery, admissibility of evidence, and the decorum of the courtroom, among other impacts.

Not everything about the legal operation of social media is special, however. Some chapters of the book focus on broader Internet law issues, like e-commerce, as noted. That chapter mentions briefly the evolution of mobile commerce, noting the difficulty of doing full disclosure of terms and conditions of sale, as required by consumer protection laws, on phone screens. It does not explore commercial aspects of the social nature of the media, or the uses of mobile devices as payment systems. The chapter appends a couple of contracts for use of a web site, though the main text does not explain why an online merchant would want or need to impose the conditions on a user or test the realism of asking a consumer to click his or her agreement to several pages of fairly dense text. The site conditions themselves are not controversial.

Many social media rely on dealing with data in the cloud, and a separate chapter sets out the basic issues in cloud computing, and offers models of contracts with cloud service providers. The degree to which such agreements are in practice negotiable may be changing as the field becomes both more competitive and more sophisticated. Having a reasoned checklist and source of potential clauses will be useful.

The book gives nearly 200 pages to a discussion of domain name issues and a large number of precedents, from registration to dispute resolution. It is not as clear as it might be whether the topic has much connection with social media. It is clearly Internet law, but the subject may occupy more space in this discussion than the topic takes in a normal online practice, much less one with a social media focus. That said, the discussion is well-informed, accessible and interesting.

Social Media and Internet Law seems to be aimed at the middle ground between whose who want a deeper examination on the purely legal questions, such as Barry Sookman’s several-volume treatise or the standard textbooks – since the individual treatments of the subject here are relatively brief, though accurate – and those who simply want to find a relevant form. For the latter, O’Brien’s Encyclopedia of Forms (11th ed.) has four volumes of forms on computers and information technology, including many forms on e-commerce and the Internet, cloud computing, and web development and use. LexisNexis’s Canadian Forms and Precedents has a chapter in its Commercial Transactions section on Internet and E-Commerce Agreements, essentially a very detailed ‘commentary’ followed by checklists and forms.

However, the treatises and the forms books can be pretty imposing and pretty expensive. Mr. Lomic and his colleagues have provided a point of access to the social media field and its legal context that will no doubt be welcome to a number of practitioners.