Social Media Law:User-Generated Content,

the Law and Lawyers

Michael PowerBarrister & Solicitor

© Michael Power 2011

What is Social Media?

Key Definitional Concepts

• One to many…

• User-generated content...

• Greater reach…

• Greater immediacy…

• Group Dynamic at Play…

• Difficult to Control Environment…

Different Purposes(All Web 2.0 technology)

• Presentation

• Collaboration

• Networking

Some Canadian (2010) Stats

• Approx 150,000 Canadians on LinkedIn.

• 71% of Canadian internet (17.6 m) users visit YouTube every month.

• Facebook Nation: 81% of Canadians online have an account.

• More Canadians than Americans use Twitter (13% v. 11% of online population).

Power of Social Media

• United Breaks Guitars

• Dave Carroll & Band travelling from Halifax to Nebraska via Chicago where baggage transfer staff break guitar.

• Frustration with United Airlines results in creative response.

• 1 song = 1 YouTube phenomenon.

United Breaks Guitars

• Posted July 6, 2009: 150,000 views within one day; United contacted Carroll saying they hoped to address his claim.

• July 9, 2009: Over 500,000 hits.

• Mid-August: Over 5 million hits.

• December 2009: Time Magazine names song #7 on Top Ten Viral Videos of 2009.

See For Yourself

Or Read About It

Using Social Media(Lawyers/Law Firms)

Social Media For Firms• Recognize need for social media strategy to reach

decision-makers: largest Facebook demographic: 35-49.

• Social media is designed to foster public conversations: first listen, then join.

• Empower employees to use social media.

• Link Social Media to Business Objectives • Faster/better market insight; • Awareness/thought leadership; • Better responsiveness to criticism.

• Map tools to objectives.

Different Tools

Source: Mashable “The 22 Step Social Media Marketing Plan” (2008)

Blogging: Lots of Lawyers Do It

Some Advice

Heather Morrison, Canadian Law Firms and Their Use of Social Media, CNW Group, 2009.

Why Tweet?

• Create/present your image.

• Drive traffic to your blog/site.

• Monitor the buzz.

• Research on specific topics.

• Promote events/seminars.

• Network/connect with colleagues.

Social Media & Lawyers

Consult Guidelines for Ethical Marketing Practices Using New Information Technologies

Aid to interpretation of CBA’s Code of Professional Conduct in the context of the new information technologies

Social Media & Lawyers

• Use of social media could be construed as advertising.

• Basic rules still apply.

• Act with integrity.

• Avoid text, images, video that have the potential to mislead.

© Michael Power 2011

Social Media Policy: 8 Thoughts

1. It’s about what people can’t do.

2. Be responsible.

3. Be “real”. Build trust.

4. Remember your audience: it’s a conversation.

Social Media Policy: 8 Thoughts

5. Use good judgment before posting. You can’t “undo”.

6. Build a community.

7. Respect IP rights.

8. Protect confidential/proprietary information.

Social Media & Law

It’s About Communicating Information

• Think confidentiality requirements:• Personal Information Protection Laws• Securities Law

• Think regulatory requirements:• Endorsements & Advertising Law• Marketing & Regulated Medical Products• Marketing & Regulated Financial Services

Social Media = Communicating Information

• Think Employment Law• Defamation of corporate stakeholders

(company/employees/clients).• Harassment/discrimination by employees.• Dissemination of confidential/propriety information.• Management “research” of potential employees.• Termination/discipline based on employee social

media conduct.• Data mining to counter disability claims.

Facebook & Litigation• As of May 2009: 50

Canadian decisions mention “Facebook,”

• As of January 2010: 100 decisions.

• Approximately 50% family law cases, 25% civil claims; 20% criminal law.

• Uses: • Attack credibility• Denigrate character• Dispute damages• Show state of mind

• Knight v. Barrett (2008): Can’t ambush a party using FB data. Include in affidavit of docs.

Source: Louise Vrebosch, “Facebook in Litigation: Taking a Poke at Discovery” Updated (January 15, 2010) http://www.pmlaw.com/pmlaw_pdfs/Facebook6.pdf

Facebook & Litigation

• BC Labour Relations Board

• Claim of unfair labour practice dismissed where termination of employees for posting Facebook comments highly critical of the employer and other employees.

• Privacy-related claims dismissed because of large number of Facebook friends (100 and 377 respectively), including other employees of the employer.

Concluding Thoughts• Technology affects societal and personal

interactions.

• Social media is simply application of technology.

• Interactions may have legal consequences.

• A necessary tool in the business of law.

• It must be considered:

• In any business strategy;• In compliance contexts;• In employee management;• As a source of evidence.

Conversation

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