Are Social Media Legal Issues Overhyped?
I have an interest in the legal issues raised by social media, but I wonder if the issues are being overhyped?
I attended a conference last week (where I actually presented on social media legal issues) and I happened to sit in and listen to another panel where the panelists also covered some related issues. Mark Herrmann, ex Drug and Device blogger and currently a columnist at Above The Law (and general counsel at Aon), was talking about social media policies. He pointed to some good resources, but ultimately he raised the question of whether a policy that is tailored specifically to social media really added anything to the mix. He posed the question of whether common sense and whatever existing policies you have in place get you 90% of the way there? (I'm paraphrasing, but this was what I took away from some of his comments.)
This got me thinking about the tremendous amount of attention that is paid by law bloggers, and the legal and tech media to the legal issues raised by social media. Mark also said something else that resonated--he said that the "blogging echo chamber" tends to disproportionately amplify legal issues related to the internet (and to blogs). This makes sense. If you are into spelunking as a hobby, you probably get excited to read about and discuss any issues, including legal issues, relating to caves. So it's not surprising that bloggers in general, and law bloggers in particular, get really excited about the legal issues that relate to the internet and to blogs.
For the most part, many of these legal issues will be resolved with reference to traditional rules. There are a few big exceptions obviously, such as the protection afforded to online intermediaries, but apart from these, a legal issue that presents itself in an online context may be novel from a factual standpoint, but the baseline rules are the same. Despite this, we as law bloggers get pretty excited when we see a legal issue that relates to Facebook or Twitter (or, in the old days, MySpace). I'm as guilty as the next person here. I have Lexis alerts set for many of these companies and a big portion of the cases in my blogging queue are cases involving these companies. However, it seems like a chunk of the legal profession seems to use these legal issues as a scare tactic to drum up business from clients and potential clients. I can't tell you how many posts I've seen that follow this formula:
It's also worth stepping back and asking a big picture question of how social media has informed the general public and actually resulted in the dissemination of useful information in a way that will minimize waste with respect to dealing with lawyers. Through the slow and painful embrace of social media by lawyers, have clients become better informed in a way that has allowed them to save money and save dealing with lawyers for the real issues that matter? Have lawyers empowered clients to allow the clients to deal with many of the issues that would otherwise require a phone call or an email to the lawyer? Or have lawyers used the social media bugaboo to try to drum up more business for themselves? In other words, has social media ushered in the beginnings of a "revolution" that legal industry commentator Richard Susskind predicted or has it had the opposite effect in some ways? I don't know the answers to these questions, but I think it's a question worth asking. There are some interesting things going on such as wikis and drafting tools, and a push to standardize and templatize (and make paperless) certain contracts and transactions, but I don't see this much when it comes to social media. I don't get the sense that the general public has become well informed as to the true risks (if any) from using social media.
[While you are at it, take this survey about the "Impact of Social Media on Access to Legal Information" (via Scott Greenfield).]
I attended a conference last week (where I actually presented on social media legal issues) and I happened to sit in and listen to another panel where the panelists also covered some related issues. Mark Herrmann, ex Drug and Device blogger and currently a columnist at Above The Law (and general counsel at Aon), was talking about social media policies. He pointed to some good resources, but ultimately he raised the question of whether a policy that is tailored specifically to social media really added anything to the mix. He posed the question of whether common sense and whatever existing policies you have in place get you 90% of the way there? (I'm paraphrasing, but this was what I took away from some of his comments.)
This got me thinking about the tremendous amount of attention that is paid by law bloggers, and the legal and tech media to the legal issues raised by social media. Mark also said something else that resonated--he said that the "blogging echo chamber" tends to disproportionately amplify legal issues related to the internet (and to blogs). This makes sense. If you are into spelunking as a hobby, you probably get excited to read about and discuss any issues, including legal issues, relating to caves. So it's not surprising that bloggers in general, and law bloggers in particular, get really excited about the legal issues that relate to the internet and to blogs.
For the most part, many of these legal issues will be resolved with reference to traditional rules. There are a few big exceptions obviously, such as the protection afforded to online intermediaries, but apart from these, a legal issue that presents itself in an online context may be novel from a factual standpoint, but the baseline rules are the same. Despite this, we as law bloggers get pretty excited when we see a legal issue that relates to Facebook or Twitter (or, in the old days, MySpace). I'm as guilty as the next person here. I have Lexis alerts set for many of these companies and a big portion of the cases in my blogging queue are cases involving these companies. However, it seems like a chunk of the legal profession seems to use these legal issues as a scare tactic to drum up business from clients and potential clients. I can't tell you how many posts I've seen that follow this formula:
- there's a very cutting edge legal issue out there in the social media space and this presents significant risk for you or your company;
- if you put in place a social media policy you can limit your risk with respect to this issue;
- for further information, call me at xxx-xxx-xxxx -- I'd be more than happy to help draft a policy for you [for a small fee, of course].
It's also worth stepping back and asking a big picture question of how social media has informed the general public and actually resulted in the dissemination of useful information in a way that will minimize waste with respect to dealing with lawyers. Through the slow and painful embrace of social media by lawyers, have clients become better informed in a way that has allowed them to save money and save dealing with lawyers for the real issues that matter? Have lawyers empowered clients to allow the clients to deal with many of the issues that would otherwise require a phone call or an email to the lawyer? Or have lawyers used the social media bugaboo to try to drum up more business for themselves? In other words, has social media ushered in the beginnings of a "revolution" that legal industry commentator Richard Susskind predicted or has it had the opposite effect in some ways? I don't know the answers to these questions, but I think it's a question worth asking. There are some interesting things going on such as wikis and drafting tools, and a push to standardize and templatize (and make paperless) certain contracts and transactions, but I don't see this much when it comes to social media. I don't get the sense that the general public has become well informed as to the true risks (if any) from using social media.
[While you are at it, take this survey about the "Impact of Social Media on Access to Legal Information" (via Scott Greenfield).]
I am a lawyer and write and speak about social media and the law from time to time. I agree that the legal dangers are overhyped. But it is good to know what they are, because people often don't properly put new things in the right context. As far as a policy goes, go to www.policytool.net and get one for free.
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Excellent post that cuts through much of the hype. Your point about those of us who are more tech savvy lawyers being more interested in these types of issues is likely a big factor--it certainly is for me. Moreover, we lawyers by nature often have a tendency to think of ourselves as pretty important people and it sure makes it fun to be the ones with the "secret knowledge" about social media that others are just dying to know ... and if they'll pay us for it, then it's really great to be in on the "next big thing"! But I wonder if there's not another factor at play as well.
Lawyers who have a general familiarity with social media legal issues can sometimes know just enough to be dangerous. That is, hopefully the first thing we lawyers learn about social media dos and don'ts is what is permissible for us to say and do through social media. Much of this is determined by our ethical rules which can, in a state like Texas, make a bit dicey for a lawyer charging headfirst into a social media presence without understanding the ethical boundaries. It certainly can be an ethical minefield for lawyers using social media. A quick look at the Texas Bar CLE course titles for the last couple of years indicates that most of the CLE courses that have been taught about social media have been focused on this -- how lawyers should use it -- not on how lawyers should advise their clients on using social media. The two standards are usually very different; our clients are not usually bound by the same ethical rules as we lawyers are.
I have to wonder if many of the lawyers who are pitching the social media bugaboo are just familiar enough with the big picture to know there are issues out there but have not gained a deep enough understanding of the issues to understand that the standards for our clients are often times much different than are the standards by which we must abide.
Thanks for the great post!
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I too am a lawyer that speaks and writes on these issues. I tend to agree that traditional rules apply; although, it's worth noting that in my field - employment law - we're finding companies dealing with new laws and new problems as a result of the technology itself that they weren't dealing with before. Prior to the social media fad, for instance, HR rarely needed to concern itself with the Stored Communications Act.
The overriding concern in my opinion for clients is not what rules apply - it's that anything social media related gets press attention (not lawyer blogs, but actual press). News articles about employees being fired for their posts are numerous, and the recent spat of NLRB-related charges over social media has demonstrated that companies seem willing to settle quickly in order to avoid press attention. The PR issues that come from poor employee decisions on social media are also fairly well documented. So, while I agree that perhaps the initial "sky is falling" reaction that some of the legal community had was a bit reactionary, some of the concerns initially expressed have been borne out. In addition, privacy will drive this issue in the future. Europe is ahead of us on these issues, and at a recent conference I heard from a number of lawyers that they are seeing the notion of privacy evolve in the U.S.
I do agree with Shawn that there are a number of folks out there with just enough information to be dangerous. But, before we throw the baby out with the bathwater, there are a number of us in the community who pay careful attention to developments, make day-to-day use of these technologies, and therefore give careful consideration on how to advise clients in practical ways on what we're seeing. In that way, I think we offer significant value to clients in helping them avoid the mistakes of their peers and stay ahead of the curve on the liabilities that are emerging from these technologies.
That's just my own two cents, personally.
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