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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