Has Social Media Really Changed the Legal Landscape?
Gary Gansle has a guest post at Read Write Web [link] where he makes a point that I've been meaning to make for a long time:
Stepping away from the employment context, in general, the development of "social" aspects of the internet have not fundamentally altered the legal rules in place. In fact, it's worth reminding ourselves that with a few very significant exceptions (Section 230, DMCA, etc.) even the internet has not fundamentally altered the legal rules in place. OK, as I write this last sentence I'm sure this flies, or at least it's debatable when it comes to the internet and legal rules. But from my vantage point I haven't really seen that many significant "new issues" presented by social media or social networks that should cause people to rethink their entire approach from a legal standpoint. Sure, there's the issue of whether you should friend opposing counsel, the judge, or a witness in litigation. There's also the issue of who owns the data and relationships underlying an employee's personal social networking account when the employee creates content on the job that's related to his or her employment. There's even the interesting question of who owns the copyright in your tweets. But often you get the sense from reading law.com articles and law firm advisories that the landscape has now fundamentally changed, and if you don't get on the bandwagon from a legal standpoint, you'll be looking at a flurry of lawsuits that will bankrupt your company. Whether this is motivated by our desire as lawyers to stay relevant or our desire to mine our professional lives and find stuff that's "interesting" (or our desire to create work that we can bill for) I don't know.
One example of this that hit home for me was around the Facebook vanity URL and Twitter user name "land rush." You couldn't turn around without bumping into an article that warned of the risks of Facebook squatting (e.g., "Facebook's imminent 'username' registration raises risks of cyber-squatting"; "Protecting Your Trademark From Facebook Username Abuse") and Twitter squatting (e.g., "How To Twittersquat The Top 100 Brands") and what you should do to prevent this. How has this translated into actual real live legal disputes? Zilch. Apart from one well-publicized lawsuit involving Tony La Russa, who brought and quickly withdrew a pretty flimsy lawsuit against Twitter ("Tony La Russa's Legal Claims Against Twitter Look Tenuous"), there hasn't been much in the way of lawsuits involving either Twitter or Facebook around this issue. (This may be a testament to their private dispute resolution features, which seem fairly effective.) I'm not suggesting that tweaks aren't required and that you shouldn't pay attention to what's going on in the space. I'm merely saying that the rules haven't been re-written, and a heaping dose of common sense can often cure a lot of problems. I should also make clear that discussion in blogs around these issues is very worthwhile. It's the more cautionary/alarmist stuff that prompted this post.
A separate but somewhat related question from Daniel Schwartz (@danielschwartz): "Do You Need to Use Social Media to Provide Legal Advice on it to Employers?" The answer to me, is obviously not. (That said, it pays to gain some familiarity with what's going on. You probably want to avoid the scenario described here: "Lawsuit Over Haitian Earthquake Photos is a Disaster.") There's nothing that makes social media unique. As lawyers we've forever been addressing client issues in factual scenarios that we don't necessarily have personal experience with. A litigator may deal with an oil spill dispute - does he or she need to have work experience in the oil industry? The mark of a good lawyer is to tackle factual scenarios and subject areas that we don't necessarily have personal experience with, or knowledge about, and understand them well enough to argue the facts to the judge and jury (or advise the client). Good lawyers "grok," and distill facts and issues effectively. The best response to Dan's question came from Michael Fleming (@FlemingMF):
Added: there is one big change, and that's discussed in this post here: "A new imperative for corporate lawyers: Don't make the children cry."
[Disclaimer: nothing in this post, or this blog for that matter, should be taken as legal advice. If you are on the verge of implementing a Twitter policy, you should probably go ahead and do it.]
[Image courtesy of christooss on Flickr (creative commons license).]
His point is that social networking and social media have affected employer/employee relations. Employment policies and practices will require some "updates," but that none of these changes warrant a complete overhaul - i.e., there's no need to freak out over the fact that you don't have a social media policy in place at the moment that specifically addresses the use of Twitter.There's been a lot of anxiety provoked (and money made) predicting a "parade of terribles" in the workplace as a result of social networking sites and employee blogs. While there is no doubt that these sites provide additional opportunities for employees to be distracted from getting their work done, I contend that not all that much has changed.
Employees that are wasting their time on social networking sites today were gossiping at the water cooler in yesteryear, and the solution is the same: thoughtful policy implementation and vigilant managerial oversight.
Stepping away from the employment context, in general, the development of "social" aspects of the internet have not fundamentally altered the legal rules in place. In fact, it's worth reminding ourselves that with a few very significant exceptions (Section 230, DMCA, etc.) even the internet has not fundamentally altered the legal rules in place. OK, as I write this last sentence I'm sure this flies, or at least it's debatable when it comes to the internet and legal rules. But from my vantage point I haven't really seen that many significant "new issues" presented by social media or social networks that should cause people to rethink their entire approach from a legal standpoint. Sure, there's the issue of whether you should friend opposing counsel, the judge, or a witness in litigation. There's also the issue of who owns the data and relationships underlying an employee's personal social networking account when the employee creates content on the job that's related to his or her employment. There's even the interesting question of who owns the copyright in your tweets. But often you get the sense from reading law.com articles and law firm advisories that the landscape has now fundamentally changed, and if you don't get on the bandwagon from a legal standpoint, you'll be looking at a flurry of lawsuits that will bankrupt your company. Whether this is motivated by our desire as lawyers to stay relevant or our desire to mine our professional lives and find stuff that's "interesting" (or our desire to create work that we can bill for) I don't know.One example of this that hit home for me was around the Facebook vanity URL and Twitter user name "land rush." You couldn't turn around without bumping into an article that warned of the risks of Facebook squatting (e.g., "Facebook's imminent 'username' registration raises risks of cyber-squatting"; "Protecting Your Trademark From Facebook Username Abuse") and Twitter squatting (e.g., "How To Twittersquat The Top 100 Brands") and what you should do to prevent this. How has this translated into actual real live legal disputes? Zilch. Apart from one well-publicized lawsuit involving Tony La Russa, who brought and quickly withdrew a pretty flimsy lawsuit against Twitter ("Tony La Russa's Legal Claims Against Twitter Look Tenuous"), there hasn't been much in the way of lawsuits involving either Twitter or Facebook around this issue. (This may be a testament to their private dispute resolution features, which seem fairly effective.) I'm not suggesting that tweaks aren't required and that you shouldn't pay attention to what's going on in the space. I'm merely saying that the rules haven't been re-written, and a heaping dose of common sense can often cure a lot of problems. I should also make clear that discussion in blogs around these issues is very worthwhile. It's the more cautionary/alarmist stuff that prompted this post.
A separate but somewhat related question from Daniel Schwartz (@danielschwartz): "Do You Need to Use Social Media to Provide Legal Advice on it to Employers?" The answer to me, is obviously not. (That said, it pays to gain some familiarity with what's going on. You probably want to avoid the scenario described here: "Lawsuit Over Haitian Earthquake Photos is a Disaster.") There's nothing that makes social media unique. As lawyers we've forever been addressing client issues in factual scenarios that we don't necessarily have personal experience with. A litigator may deal with an oil spill dispute - does he or she need to have work experience in the oil industry? The mark of a good lawyer is to tackle factual scenarios and subject areas that we don't necessarily have personal experience with, or knowledge about, and understand them well enough to argue the facts to the judge and jury (or advise the client). Good lawyers "grok," and distill facts and issues effectively. The best response to Dan's question came from Michael Fleming (@FlemingMF):
If you don't now who or what "Scoble" is, don't worry, you're not missing much.Seems to me that it's hard to understand SM well enough to advise on it w/o participating. But, don't have to go Scoble.
Added: there is one big change, and that's discussed in this post here: "A new imperative for corporate lawyers: Don't make the children cry."
[Disclaimer: nothing in this post, or this blog for that matter, should be taken as legal advice. If you are on the verge of implementing a Twitter policy, you should probably go ahead and do it.]
[Image courtesy of christooss on Flickr (creative commons license).]
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