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Slides for General Practitioner's Update - Social Media an Overview

Slides for General Practitioner's Update - Social Media an Overview

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Published by Jennifer Ellis
These are the slides for a presentation I gave for the Pennsylvania Bar Institute in June, 2012. It is a 60 minute overview of social media.

Issues include:
Broad explanation of social media types
Intellectual property
Advertising
Privacy
Employment
Attorney Use

The numbers represent page numbers in the book. If you want the materials, the book should be for sale in July, 2012 at http://www.pbi.org.
These are the slides for a presentation I gave for the Pennsylvania Bar Institute in June, 2012. It is a 60 minute overview of social media.

Issues include:
Broad explanation of social media types
Intellectual property
Advertising
Privacy
Employment
Attorney Use

The numbers represent page numbers in the book. If you want the materials, the book should be for sale in July, 2012 at http://www.pbi.org.

More info:

Categories:Types, Business/Law
Published by: Jennifer Ellis on Jun 12, 2012
Copyright:Traditional Copyright: All rights reserved

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06/24/2014

Social Media: An Overview General Practitioner’s Update June, 2012

Jennifer Ellis, Esq. Freedman Consulting, Inc. jennifer@freedmanlpm.com

Today’s Discussion
• • • • • • • Social Media – Explained Intellectual Property Privacy Advertising Employment Discovery Attorney use

Social Media Explained Through Dog Walking

I’m walking my #dog

• 140 Characters • 500 million users • One of 10 most visited sites every day

I like walking dogs! I also like walking dogs!

• 900 Million Users

I’m walking my dog at Lower Allen Dog Park I’m near there, I’ll come join you We’ll give you a dog biscuit for checking in. • 20 million users
– 2 billion check-ins

Watch a video of me walking my dog

• 800 million unique users each month • 4 billion videos viewed each day

My skills include walking dogs

• 161 million members • Executives from 100% of Fortune 500 companies

Here’s a picture of a dog linked to an article on how to train dogs to walk properly

• 1.1 million daily active users • 10 million active visits per month • Majority female

Here is a slideshow I created about how to properly walk a dog

• 100 million active users • Social document sharing

I walked my dog today. Here is a post discussing my experience and sharing links to articles on dog walking to support my view. • 1 in 4 people read blogs • 74 of AmLaw 100 have blogs

I posted about dog walking somewhere else. Might as well post it here too.

• 100 million members • Posts included in Google’s search results

Thanks to @ThreeShipsMedia for the social media explained concept

Two Things to Remember About Social Media

• Amount of possible trouble is expanded by the reach of the Internet
• Rules that apply offline apply online

Watch for the Streisand Effect
• Barbara Streisand sued to have an image of her house removed from the Internet
– Resulted in greater publicity and a lot of insults

• Lesson learned?
– Suing rarely works

• Best way to deal with such errors of judgment?
– Don’t make them – Apologize (sincerely) – Lay low

Intellectual Property (5-43)

Intellectual Property
• Trademarks (5-45)
– A trademark is a word, design or device that distinguishes the products and services of one company from another. – Infringement is when a trademark is used in commerce in a way that can cause confusion, mistake or is intended to deceive.

Trademarks & Social Media
• Ability to pick own usernames/assign names to pages
– No proactive prevention in social media – Retroactive protections in place to complain if trademark is being used

• Must police Trademark to protect BUT
– Beware the unnecessary take down due to PR concerns
• Remember Streisand

– Consider a polite phone call first

Copyright (5-46)
• Original work of authorship
– Code – Pictures/Graphics – Documents – Music and Video

• Fixed in a tangible medium
– Not sitting in the creator’s brain – Paper, website, video, picture

Copyright
• Digital Millennium Copyright Act
– Heavy protection for infringing activity by users
• • • • No actual prior knowledge Comply with notice and takedown No financial benefit Register with Copyright Office, provide agent for receipt of notice

Copyright
• See violation?
– Notify provider’s agent – Identify where material appears – Certify ownership

• Risk penalties and attorneys fees if wrong • Large social media sites normally have online form

Patents (5-46)
• Exclusive rights in
– New, useful, non-obvious
• • • • Process Machine Article of manufacture Composition of matter

– (Or) New/useful improvement thereof

• Specific to country

Patents
• Watch web for patent violations • If violating patent
– Initial contact normally cease and desist; or – or informal letter; or – Lawsuit

• Prepare and educate staff • Coordinate response

Privacy (5-47)
• FTC managing agency • Sites and businesses must obey their own privacy policies • Be aware of special rules involving children under 13
– (Children’s Online Privacy Protection Act)

State & International
• Be aware of special state & international laws
– Remember the Web doesn’t stop at state or national boundaries

• California • Massachusetts • European Union

Advertising (5-48)

Advertising
• FTC regulates advertising
– Unfair or deceptive acts or practices in or affecting commerce – Has released guidelines
• http://www.ftc.gov/bcp/guides/guides.shtm

Testimonials
• Consumer Testimonials • Must
– Be actual consumer – Clearly state the expected result – Have adequate substantiation

Testimonials
• Expert Testimonials • Must
– Be actual expert – Relevant expert

• Organizational Testimonials • Must
– Fairly reflect opinion of organization – Single staff member may not be enough

Disclosure
• Must disclose
– Relationships – Sponsorships – Financial benefits of any kind – Bloggers must reveal if received free item

Honesty
• All endorsements and advertisements must be honest

Employment (5-37)

Find Good People
• Sites such as LinkedIn and Facebook can create an excellent referral network • Research on a candidate can be performed inexpensively and easily • A well-designed presence can encourage people to contact you • Use network of people you know
– Chance of finding a good fit improves if people you know are behind the recommendation

Inexpensive and Fast Research
• Look at potential employees pages/accounts
– Learn about employee – Identify for personality fit – How person networks – Writing ability – Speaking ability – Creativity – Interests – Appropriate behavior

Improper Knowledge
• Can learn items shouldn’t know
– – – – – – – – – Marital Status Pregnant/Children Race Religion Nationality (can ask if can legally work) Native Tongue Age Arrested (versus convicted) Military status

Reliability
• Is it real?
– Do you have the correct person? – Is the information correct?
• People have created fake accounts to hurt others.

National Labor Relations Board
• NLRB concerns (5-41)
– Several cases in which NLRB has found violations for firing people based on postings – NLRB under current administration has never found a social media policy acceptable – Do not interfere with protected concerted activity
• National Labor Relations Act • Do not have to be unionized to apply

Protected Concerted Activity
• What is it?
– Hard to say under current NLRB – Is it related to the terms and conditions of the work? – Group action, or – “First step toward taking a group action?”

Protected Concerted Activity
• If an employee posts something
– Don’t react quickly – Don’t react in anger – Check with counsel

Harassment/Violation of Policies
• Failure to act can give rise to complaint
– Be sure to properly respond to sexual or other harassment on social media – Be sure to have a process in place to deal with violation of policies

Recommendations
• Providing a recommendation to a fired employee can give ammunition in a lawsuit. • Have policy on recommendations
– Have recommendations cleared – Require recommendation to be from individual and specifically disclaim that it is from the company

Social Media Policies – Best Practices (5-42)

Social Media Policies
• Every business should have a social media policy • Policies may not
– Forbid use of social media (off business property) – Interfere with protected concerted activity

• The policy should be part of the computer use policy

Once Policy is Complete
• Train staff • Require acknowledgement
– In writing

• Provide method for updates
– Material updates should be acknowledged in writing

Items to Consider (5-35)
• Employees, unless it is part of their job description, may not post upon behalf of the organization • Employees must never post about customers or any private/secret information • Must obey all laws/rules
– HIPAA – Attorney/Client confidentiality

Considerations
• Job descriptions up-to-date
– make clear which people are supposed to post on social media sites as part of their job

• For the individual(s) responsible for posting on behalf of the company
– Develop guidance and best practices – Plan for response if something negative happens

Considerations
• Identify the positive uses of social media
– Enable appropriate staff to use it for those purposes

• Make it clear that changes to the policy must be made in writing by the appropriate person(s)

Discovery (5-23)

The Reality
• People frequently
– Lie to the court (or their attorney) and tell the truth on social media – Post things harmful to their cases – Have friends post things harmful to their cases

Discovery
• Cases in Pennsylvania
– No fishing expeditions – Contradictory information viewable
• Discovery granted

– No contradictory information viewable
• Not granted

Pennsylvania Cases (5-29)
• Zimmerman v. Weis Markets Inc.
– Plaintiff claimed no shorts due to embarassing scar – Posted pictures wearing shorts on MySpace – Pictures viewable – Discovery Granted

Pennsylvania Cases
• Piccolo v. Paterson (only a paragraph)
– Asked for access to Facebook – No publicly available pictures – Already had numerous pictures – Privacy concerns – Discovery Denied

Pennsylvania Cases
• McMillen v. Hummingbird
– Plaintiff claimed certain injuries and loss of abilities – Differences shown on Facebook pictures – Pictures publicly available – Discovery permitted

How to Handle Social Media
• Begin with your own clients
– Ask if they have social media – Suggest they should stop using it – Make it clear they may not delete posts they have already written
• This would be destruction of evidence • You could be found culpable for spoliation, be careful.

Opposing Side (5-25)
• Get online and look • Preserve what you find
– Screen shots – PDFs – Video

• Be careful who does the preservation or you could end up being your own witness

• Request that counsel have the entire Facebook account downloaded immediately
– Facebook provides a tool

• Ask for all email addresses
– People may have more than one account

• Send a notice to preserve immediately • Be clear that you mean everything
– Social media – Blogs – Any kind of postings online

• Ask for immediate access • Access should mean a password, because not everything is accessible without one. • If refuse password ask for privacy settings to be completely opened

• Ask for Judge to compel access • Ask the right questions
– Don’t just ask about Facebook – Ask about all online use

Important to Note
• Facebook and MySpace will not provide content in a civil case
– Limited by Stored Communications Act, 18 U.S.C. § 2701 et seq. – Will only provide ownership information, broad account information

• Still doesn’t hurt to ask

Admission
• Even if information is obtained through discovery, all usual evidentiary rules apply • You may need to educate your judge about social media and its relevance

Watch the Ethics (5-27)
• Friending witnesses is ok
– Must reveal who you are – If using third party, s/he must reveal who he is

• Relevant Rules
– Pa. Rule 5.3
• Responsibilities Regarding Nonlawyer Assistants • “Procuring conduct…responsible for conduct.”

– 8.4
• Misconduct • “deceptive”

– Pa. Rule 4.1
• Truthfulness in Statements to Others • “highly material fact”

• No friending opposing side
– If employment case, be clear whether the person is effectively a client due to his position in the company

What is Ok?
• Accessing what is freely available
– Most people don’t change privacy settings

• Accessing through someone who is already a friend
– Divorcing spouses often forget to unfriend each other – Watch for any accusations of forced sharing in employment cases

Attorney Use – Ethical Concerns (5-11)

7.1 False or Misleading Communications
• Don’t be misleading in communications either on or offline

8.X Protect Profession
• Obligation to “Maintain the Integrity of the Profession”

7.2 Attorney Advertising
• Social media is a form of attorney advertising. • Includes
– Copies/Records kept 2 years – No celebrity endorsements – Fee language restrictions – Geographic location disclosures

8.5 Multi-State Practice
• Comply with home states’ rules where:
– Office is located – All attorneys admitted – Seeking clients

7.4 Specialization
• Attorneys in Pennsylvania:
– Do not specialize – Are not experts

• They
– Focus on – Limited to

• Exceptions for “Specialists”
– Patent – Admiralty – Actual certifications

5.5 Unauthorized Practice of Law
• Careful on sites that allow answering of questions
– Avvo – LinkedIn – Blog

• Could
– Inadvertently form a client relationship – End up practicing in a state in which not licensed

Include Disclaimer
• Nothing on this site is to be taken as legal advice. • No communication between FIRM and readers of this site is to be inferred to cause an attorney client relationship. • For more information view the full disclaimer. • The attorneys of FIRM are licensed to practice in Pennsylvania.

Don’t Look Like an Idiot on the Web (5-19)
• Called a judge an “evil witch” and “seemingly mentally ill.”
– Making false and reckless statements regarding the qualifications of a judge – Engaging in professional conduct that is prejudicial to the administration of Justice

• Revealing information about a client, insulting the judge.
– Suspended

No Private Life
• Will be punished for behavior regardless of whether on a personal or public account or personal or public topic
– Attacking gay student on private website – Tweeting offensive joke – Both fired

Judges Should Be Careful
• Judges
– Friends with defendants – Ex-parte communication on Facebook with attorney – Not allowed to friend attorneys in Florida

Remember No One Can See or Hear You
• No body language or vocal inflection • Different senses of humor • What is a joke to one person is an insult or a grievous threat to another

Proper Use of Social Media (5-5)

Social Media Is Very Useful
• Despite the malfeasance of some, social media is very useful
– As a networking tool – As an advertising medium – As a research tool

Keep Track of Your Image
• Set up Google and Yahoo alerts to see when you are mentioned online

Make Your Presence Known
• • • • • Blog Facebook LinkedIn Twitter Numerous other social media sites

Brand Yourself and Your Firm
• • • • Consistent message Consistent image Show level of knowledge Engage with your audience

Order of Importance
• Blog
– Best SEO tool – Best for showing level of knowledge

• LinkedIn
– All attorneys should have completed LinkedIn profiles

The Rest (No Certain Order)
• Consider claiming Avvo
– Practicing a while – Robust profile – Never in disciplinary trouble

• Remember – Cannot remove Avvo score • Facebook
– Create a page for your firm – Consider whether you want to share your personal account

• Twitter
– Easily connects to Facebook
• (and vice versa)

– Excellent way to increase blog presence by sharing titles of posts and links to posts – Good for short bits of information

• Pinterest
– Visual medium – Use with blog – Show personal side

• Google+
– Potentially valuable for SEO
• Google still revealing plans • Could be worth the effort since included in Google search results

– Not as many posts from average people – Create a business page for your firm – Share useful information

Connect Everything
• Provide links to all of your accounts and your Website everywhere you can

Blog

Website

Thank You

Jennifer Ellis Freedman Consulting, Inc. jennifer@freedmanlpm.com

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