Like It or Not, the Future is Now:

Social Networking Media and the Law

Philip B. Korb

Ballard Spahr LLP

WHAT ARE SOCIAL NETWORKING MEDIA? AN INTRODUCTION

Social networking media are Internet-based electronic media, in which users are interactive and connected by relationships. In the early 2000s, the term Web 2.0 arose, to reflect the next stage of Internet development and use. This was to be greater interactivity among users, who would access the Internet to communicate with each other and produce as well as consume content. It was not in theory a revolutionary change in the Internet, which was first conceived as an interactive network.[1] However, the focus of the previous generation (the 1990s) of Internet websites was production and broadcasting of content to passive viewers. At the same time, interaction and communication among users via the Internet developed separately, as email use increased and became commonplace.

The technological advances that made widespread social media practical included increased connection speeds and bandwidth, the spread of portable web-enabled devices such as Blackberries, iPhones and other smart phones, and improvements in relationship software. The social change that gave these media necessary critical mass was simply the virtual ubiquity of the Internet – the mere fact that almost everyone became connected (When was the last time you asked a business contact for their email address and were told he or she did not have one?). With everyone connected and able, not just to communicate, but to send and receive huge data files such as music, picture and video files, the elements were in place for the development of social media, in which Internet users could communicate publicly and exchange content, and such content could spread quickly though electronic word of mouth, via relationships. The transition to electronic communication as the virtually universal norm has been completed within just two decades. Facebook recently passed the 500 million member mark and expects to reach one billion users in the near future. [2]

HISTORY

We may have the dot.com bubble of 1995 to 2000 for making this possible. The Internet could not become an effective large scale global communication system for personal and business use without exponential increases in speed and bandwidth capacity from the dial-up era. Accomplishing that would require multiple transatlantic fiber optic cables. In the late 1980s this became technologically feasible but still seemed too expensive to be financially feasible. However, aggressive telecommunications companies such as Worldcom achieved unrealistic market capitalization during the bubble, giving them unimagined capital. So many companies used that capital to lay fiber optic cable that they created not merely a robust telecommunications system but a system with so much excess capacity that transmission costs approached zero.[3]

The dot.com bubble left financial wreckage to be sure, but also bequeathed to the twentieth-first century the technological infrastructure that has made our wired society possible. This distinguishes it from the most recent financial and real estate bubble, which appears to have left behind only see through condominium towers, ghost town subdivisions, and crippling bailout deficits.

Once the bandwidth infrastructure was in place, and broadband connectivity became the norm, sites like YouTube, eBay (which is inherently an interactive community), and Facebook grew from a few thousand users to hundreds of millions of users within just a few years. YouTube receives millions of postings a day, yet through the wisdom of crowds some postings “go viral”, spreading almost instantly around the world. Within days, videos of a wedding dance celebration or quirky Britain’s Got Talent contestant are passed along and seen by scores of millions.

BUSINESS USE OF SOCIAL NETWORKING MEDIA

The original purpose of such sites was literally social, but because almost every substantial business already had a web presence, and as business development and marketing have always been in great part based on relationships, it was inevitable that businesses would leverage these tools. As the distinction between personal and professional use of media has blurred, social media are being used increasingly in the business world.

Recent surveys confirm the proliferation of social media throughout the business world, including in-house legal counsel. According to the just released Corporate Council New Media Engagement Survey jointly produced by Zeughauser Group, Greentarget and ALM Legal Intelligence, a large majority of in-house counsel obtain industry news on-line, a majority use LinkedIn (for business connections) and Facebook (usually for personal networking). Needless to say, the percentage of under 40 year old in-house counsel that use such media is even higher. Interestingly, while most in-house counsel report using such media more frequently as time goes by and expect to do so more in the future, a large majority are nevertheless critical, finding social media too often unreliable, self-serving, unverifiable and at risk for security issues.

SPECIFIC LAW RELATED MEDIA

LinkedIn. This may be the most successful and useful relationship site for professionals. It was launched in 2003 and currently has about 70 million users in 200 countries. It has reached sufficient critical mass to be useful. A user posts his or her professional profile, and requests connections to other users. Like Facebook, those other users must choose whether to accept the connection. It gives users the opportunity to obtain introductions to connections of connections.

Martindale-Hubbell Connected. This was launched in mid-2009 to serve as a Facebook for lawyers. Martindale-Hubbell is seeking to leverage its brand by creating what it hopes will be a respected site. Users are invited to provide legal content as well. Its initial site was criticized as awkward and it has recently relaunched. It is too early to know whether it will reach that necessary critical mass. Legal blogs have proliferated and Martindale-Hubbell may be seen as a reliable venue for postings.

AVVO. This is in effect a yellow pages for lawyers. It creates a page for lawyers without their requesting it, replete with photos copied from firm websites. A lawyer may receive an unsolicited email from AVVO containing the page it has created for him or her, asking if it is accurate, and inviting the lawyer to add content. It includes apparently arbitrary ratings, and permits advertising. It is probably most useful for “retail” consumer law practices such as personal injury, criminal law, workman’s compensation, immigration, etc. The testimonials posted on the site touting its power in generating clients are typically posted by criminal or personal injury lawyers. It probably has little value for a large commercial practice. It is hard to imagine a general counsel of a Fortune 500 company, or a sophisticated real estate developer, picking a lawyer on AVVO. It appears to be essentially an electronic medium for posting the equivalent of subway ads that display photos of earnest looking lawyers with sleeves rolled up posing under copy asking “Injured on the Job? Call Dewey Cheathem and Howe.”

Legal OnRamp. This is a site for collaboration and communication between in-house counsel and invited outside counsel, created in 2007. It describes itself as epitomizing “Law 2.0”.

AboveTheLaw. This legal news blogging site has become well known for its breaking news, gossip, and occasional notorious and salacious stories. Many large firm lawyers monitor it for proactive defensive purposes. They would prefer to discover firsthand rather than secondhand the latest word on the street about their firms.

ISSUES, PROBLEMS AND OPPORTUNITIES OF SOCIAL MEDIA IN THE LAW AND FOR LAW FIRMS

The creation and proliferation of new social networking media have not created unique new legal problems. They have just made it easier to create the same old legal problems and make the same old legal mistakes, only on a grander scale. It has always been imprudent to criticize one’s employer in public, and reckless to mention the latest secret about a new invention in a biotech company or about an ongoing case or transaction in a law firm. While imprudence and recklessness have always been common enough human failings, and there have always been rules prohibiting such conduct, the consequences of violating them have usually been limited and controllable. However, the widespread use of electronic communication technology ---the Internet and email--- have been facts of life for over a decade now, and already educated us to the risks of modern indiscretion. These new media have simply further expanded the opportunities for broadcasting an ill-considered complaint or confidential disclosure to a potential world wide audience.

WORK VS. PERSONAL SOCIAL NETWORKING ACTIVITIES

Most companies already have policies regarding work-related conduct. Regulating the use of social networking media can be accomplished within the same parameters.

Social networking media are usually used for personal social activities, but can be used for business development, to create, expand and utilize relationships. Businesses normally restrict personal social activities and limit the business day to business activities. This typical and obvious guideline should be expressly extended to social networking media.

Most employees waste time and goof off occasionally. The computer and the Internet have been extraordinarily powerful tools, responsible for much of the increase in worker productivity of the last few decades. However, they also offer unparalleled opportunities for distraction. As an early example, many firmslong ago removed solitaire from lawyer desktops. Our firm has also established policies limiting use of streaming video, after discovering that during playoff games involving our home teams, the network slowed to a crawl as our bandwidth was preempted by hundreds of video feeds. The problem was serious enough and intractable enough that we accepted the practical compromise solution of placing a TV in a conference room.

Firms used to have policies simply blocking access to certain Web tools, such as streaming video, that consumed bandwidth, as well as access to certain kinds of inappropriate sites, that might display sexually explicit or violent material. I once was unable to complete a Google search, receiving what in our firm was known as the red hand of death, when I was researching Remington Financial, a lender in a transaction, because our policy barred gun related sites, and the software for doing so identified Remington as a weapons manufacturer and blocked access to a company with that word as part of its name. The ubiquity of sites that might inadvertently be blocked, and their many legitimate uses, has eliminated the use of blocking softwarein most firms. But we continue to have rules prohibiting inappropriate use of the Web and dissemination of inappropriate content.

MONITORING EMPLOYEES AND INVESTIGATING PROSPECTIVE EMPLOYEES

Because more and more people, especially young people beginning their working careers, use Facebook, MySpace and similar networking media, they leave an electronic footprint that is easy to follow and may be impossible to erase.[4] Recent surveys confirm that most employers investigate job applicants by searching such sites.

According to recent studies, about three-quarters of employers now use search tools to learn about prospective hires, reviewing their LinkedIn profiles, for example.[5] Employers may also monitor their employees’ use of sites such as LinkedIn to be sure they are conforming to company policy.

The Stored Communications Act (“SCA”), 18 U.S.C.§ 2701, et seq. , makes it illegal to access unauthorized electronic communication services. Damages and other relief is available (SCA §2707). There have been cases of employers exposed to damage claims for compelling employees to reveal passwords, or using spyware to attempt to gain access to private pages of social network sites. Employees are at risk for making inappropriate public statements; employers are at risk for inappropriately accessing private statements. Posting content on the Internet by an openly available blog or website invites employers to monitor such material. Password-protected sites, or non-public sites such as the private pages of Facebook available only to those invited as friends, are off-limits to uninvited employers.

SOCIAL NETWORKING COMPANY POLICIES

The problems networking can cause usually involve intellectual property infringement or misuse, disclosure of confidential information or trade secrets, disclosure of private information about people, and privacy intrusions. Companies should establish policies that address them. Also, the increased blurring of our personal and business lives makes it necessary to establish policies for distinguishing work time and personal time, and the use of social networking media for business use. Firms must decide how strictly they want to regulate such activities. Attached is an example of a Social Networking Policy created by our firm’s Labor Group that would be part of a company’s personnel policy manual.

PRUDENCE AND UNDERSTANDING OF PARTICULAR RISKS OF THESE MEDIA

We have already been sensitized to the need for electronic discretion by using email for over a decade. We just need to sharpen our prudence in the context of these media. For example, posting an intemperate or even just colorful comment to a political posting by a Facebook “friend” may prove embarrassing when it appears on the friend’s “Wall” where it is read by strangers. Even posting a birth date on a Facebook profile is divulging information that could be mined by identity thieves.

LEGAL RISKS OF USING SOCIAL MEDIA

Users of such media should ask themselves these questions when they post content[6]:

Does it violate a copyright? Is it fair use?

Does it violate a trademark?

Does it invade personal privacy? The issues include: whether it is inappropriately using a person’s name or image for commercial purposes; whether it discloses private information; and whether it is libelous.

Does it breach confidentiality agreements?

Is it defamatory?

Does it violate advertising restrictions?

Does it violate the specific rules of the site?

Does it contain appropriate disclaimers and qualifying language? Say “may”, not “shall”.

Is it protected by your insurance policies?

LAW FIRM ISSUES

Just as tech companies have their own unique issues guarding their intellectual property when using social media, law firms face their own issues. These sites allow lawyers not just to identify themselves and connect with others, but to post and answer questions, and to create blogs. This is where ethical and liability issues arise. [7]

There is a difference between posting legal information of a general nature and responding to a “fact-specific” legal situation. Even posting general legal information presents risks, and offering legal advice is even more dangerous. It may create an attorney-client relationship.

Confidentiality

A lawyer who has inadvertently created an attorney-client relationship will have a duty of confidentiality. Ironically, not only is the risk of creating such a relationship greater in the world of social media, but the danger of breaching that duty is heightened by the casual environment and ease of broadcasted communication of such media.

Conflicts of Interest

A lawyer posting to semi-strangers online may not realize he is communicating with an adverse party. He may take a legal position inconsistent with the position he is taking in an active case. He may acquire information from a non-client that disqualifies him from a representation.

Unauthorized Practice of Law.

A lawyer opining on a legal issue while online is likely to have a nationwide, or even worldwide, audience. He may well be engaging in the unauthorized practice of law in 49 other states, and in multiple countries.

Advertising and Solicitation

Identifying oneself as a “specialist” in a field may violate local state law practice rules. Some state bar associations treat business solicitation on networking websites as public media advertising, which is subject to their advertising regulations.

Misuse of Media

Lawyers should not use deceitful means or misrepresentations to obtain information on other parties. Snooping in the private Facebook pages of opponents or posing as a “friend”’ (or hiring a spy to pose as a “friend”) is unethical.

ALAS cautions lawyers against mixing the personal with the professional, not to communicate with lawyers on social media sites, not to include any confidential information on any media site, not to use real cases as examples or hypotheticals in legal discussions, and not to snoop. ALAS also recommends including disclaimers with any professional post. It could state that the post: “(1) is intended for general informational purposes only and does not constitute legal advice or a legal opinion; and (2) reflects the view of the participant only and not of the law firm.”[8]