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Monday, January 7, 2013

Cyberlaw Predictions: Unfinished Legal Business on Social Media

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This post is the eighth in a series of predictions from legal and business experts about the directions cyberlaw policy might take in 2013, solicited by editors of BNA's Electronic Commerce & Law Report during the closing weeks of 2012. We asked that the remarks be brief -- something along the lines of a Twitter "tweet" or an elevator pitch. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts responded, producing 307 separate assessments, predictions, or just plain complaints regarding any of the many legal subject areas that affect online businesses.

The one-two punch of content-sharing social networks and always-connected, location-aware cell phones has transformed the way we communicate with each other. Expressive and artistic speech, political speech, commercial speech, even speech about cute furry animals, have all moved into the social media space. Likewise speech about gambling, speech about criminal activity, regulated speech about the medical and legal professions, and speech that might have been copyrighted or trademarked by a third party. Legislators and law enforcers are not far behind.

social media

The social media phenomenon has perhaps had its greatest legal impact in the workplace, where employers are still working though issues relating to ownership of social media accounts, employee privacy and monitoring of employees' social media activities, and compliance with federal labor laws.

The experts' views:

If the company social media policy is more than two years old, it is time for a refresh, thanks to state legislatures and the NLRB, among other developments. And don't overlook the importance of training that is relevant and customized to subsets of workers and your actual industry and corporate culture. Jennifer C. Archie, Partner, Latham & Watkins LLP, Washington, D.C.

Ownership of social media accounts between employers and employees remains a very hot topic as shown by Eagle v. Morgan and PhoneDog v. Kravitz cases as well as new social media legislation passed in Illinois, California, and Maryland. Robert B. Milligan, @tradesecretslaw, Partner, Seyfarth Shaw LLP, Los Angeles.

An emerging area of social media and employment law for 2012 involves the legality (or illegality) of an employer's "over the shoulder" examination of its employees' social media posts and blog site posts to support adverse action against employees for misconduct, including posts on social networking sites such as Facebook, Twitter, and LinkedIn. An employer's examination of an employee's social network posts, through another employee or other "friend," "follower" or "connection," may reveal conduct that violates the employer's policies governing confidentiality, ethics, non-competition, and leave-of-absence, to name a few. 2013 is a year in which the courts will see an increasing number of claims for alleged invasion of privacy and violation of the federal Stored Communications Act, forcing the courts to break new ground in the areas of social media and employment law. Gary E. Perlmuter, Partner, Asker Perlmuter PLC, Farmington Hills, Mich.

Expect to see more litigation arising from the blurring lines between personal social media usage and work-related social media usage. John F. Delaney, @MoFoSocMedia, Partner, and editor of SociallyAwareBlog, Morrison & Foerster LLP, New York, N.Y.

With the explosive growth of enterprise social networks such as Jive, Yammer and NewsGator, we're anticipating a wave of employment disputes arising from intra-company usage of such networks. John F. Delaney, @MoFoSocMedia, Partner, and editor of SociallyAwareBlog, Morrison & Foerster LLP, New York, N.Y.

In 2013 we will likely see more disputes between employers and employees over the ownership of social media accounts, contacts and other online assets. Joseph Geisman @JoeGeisman, Vice President, Business and Legal Affairs, Maize Marketing, Los Angeles.

The lesson from the lawsuit over who owns a Twitter account is that where something has a business value, a written agreement should exist. Glen Gilmore, @glengilmore, Attorney and Digital Marketing Strategist, Gilmore Business Network, Greater New York.

NLRB guidance on social media policies has put an end to "warm and fuzzy": drafting a compliant policy has become a lot more complicated. Glen Gilmore, @glengilmore, Attorney and Digital Marketing Strategist, Gilmore Business Network, Greater New York.

Social media is steadily evolving with Facebook, LinkedIn, and Twitter continuing to be key players in 2012, but Pinterest has been steadily gaining steam. Employer social media policies were a hot news topic in 2012 with a considerable amount of coverage on employee privacy rights. Vigilance is the key for legal teams in 2013 as they need to keep on top of the ever changing social media and legal landscape to maintain policies that are both lawful and enforceable. Jamila Hunte, @bdbrandprotect, Account Manager, BrandProtect, Ontario, Canada.

When Instagram changed its terms of use in December, it inadvertently reinforced two important lessons: (1) people do read website terms of use and privacy policies (especially journalists who cover media and technology) and (2) web communities can police themselves pretty effectively. No lawyers or regulators had to step in; the community took care of itself. Jonathan D. Hart, Partner, Dow Lohnes PLLC, Washington, D.C.

Some state bars will continue their ham-fisted attempts to regulate attorney marketing via social media--even as the courts keep carving back speech regulation on First Amendment grounds. Josh King, @joshuamking, General Counsel, Avvo, Seattle.

In politics, robocalls, direct mail, and negative ads failed to move the needle, but social media and authentic interaction by candidates was compelling to voters. Christine Jones, @attyjones, Former General Counsel, GoDaddy.com, Phoenix, Ariz.

This year the UK struggled with the criminal consequences of twitter as convictions for tweeting grew Jonathan Armstrong, Partner, Duane Morris LLP, London.

Federation of State Medical Boards adopts model policy guidelines--practitioners and app developers need to understand. James Gatto, @Get_SET_Law, Partner, Pillsbury Winthrop Shaw Pittman LLP, McLean, Va.

Expect more variances (and questions) concerning the level of control that social media platforms exercise over communications and content on their networks. Joseph Geisman @JoeGeisman, Vice President, Business and Legal Affairs, Maize Marketing, Los Angeles.

Pinterest and Instagram are sites to watch in 2013. Brands will gravitate to these sites to help drive traffic to their Websites. Kenneth Suzan, @ksuzan, Of Counsel, Barnes & Thornburg LLP, Minneapolis.

Twitter may be a favorite forum for online gabbing, but it sometimes stifles intellectual property rights. True, the Twitter Rules prohibit the misleading use of trademarks, copyright violations and false impersonations. Despite these Rules and online reporting forms, however, the process for removing infringements is slow and painful -- especially when it comes to impersonation. Be prepared to submit your driver's license, a brief showing why the impersonation is illegal, and an affidavit to prove that you did not authorize the unlawful Twitter handle. Roberta Horton, Partner, Arnold & Porter LLP, Washington, D.C.

Pinterest reminded us that a picture is worth a thousand words--and possibly much more if it's "pinned" without a user's permission. Glen Gilmore, @glengilmore, Attorney and Digital Marketing Strategist, Gilmore Business Network, Greater New York, N.Y.

Regulated industries such as health care and pharmaceutical must ensure that their social media activities are compliant with all laws. Regulators are monitoring. Kenneth Suzan, @ksuzan, Of Counsel, Barnes & Thornburg LLP, Minneapolis, Minn.

The popularity of social media will be fueled by the increased growth and expansion of mobile devices such as smartphones and tablets. All eyes will be on mobile. Kenneth Suzan, @ksuzan, Of Counsel, Barnes & Thornburg LLP, Minneapolis, Minn.

In the age of viral videos and social media, anyone can become an overnight "celebrity." Accordingly, fame-seekers should consider that choosing the location of their domicile is not only relevant, but vital, in terms of their right of publicity, enforcement of same, and their ability to pass such rights on to their heirs. Lynne Boisineau, Partner, McDermott Will & Emery, Irvine, Calif.

Social gaming thriving. Online gambling slowed by legislative process. Social gaming provides profitable online gaming alternative. Bradford Blaise, @Get_SET_Law, Associate, Pillsbury Winthrop Shaw Pittman LLP, McLean, Va.

The ever increasing motion practice on e-discovery issues will hopefully provide greater clarification on what types of traditionally private media (e.g., smartphones, social media accounts, personal emails) lie beyond the scope of what is discoverable in unrelated litigation. Tim Bukher, @tbukher, Partner, http://www.handalglobal.com, Handal & Morofsky LLC, New York, and editor of the Law Techie blog.

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