On September 16, 2016 over 130 attorneys attended in person or via remote access the 6th Annual Social Media and Law program sponsored by the Institute of Continuing Legal Education in Georgia (ICLE). Chaired by Deborah Gonzalez, Esq. , founder of Law2sm, LLC (www.law2sm.com), the program featured a number of prominent attorneys in the areas of criminal and civil litigation, employment law, entertainment law and technology law.
Gonzalez began the day with an update of the social media legal landscape highlighting the most prominent changes in the social media technology and the latest cases relating to the online platforms. Gonzalez emphasized that not only were there changed from 2015 to 2016, but that these changes should be seen in the context of change from 2011 (when this series began) to 2016 (the present year).
Trends reported on:
- Facebook seeing its users share less personal information as people are becoming more concerned over privacy and security.
- Facebook changing its algorithm making it necessary for business to spend more on advertising to reach potential clients.
- Live streaming taking off with Facebook Live and Twitter and NFL deal.
- Emojis as a language that can convey specific speech, including threats and discrimination.
- New apps accessing publically available social media data for new uses.
- Hoax Alert – Selfitis
- Increase in cyber bullying and cyber-harassment
- FTC Native Advertising Guidance
- Tweets are Public Records in Nevada
- The Dark Web proves challenging for law enforcement and criminal investigations.
The next panel focused on Social Media and its use in litigation. Paul E Andrew, from Andrew Merritt, Reilly & Smith, organized and moderated the panel. Josh H Viau from Fisher & Phillips LLP and Melinda C Pillow from the Law Office of Melinda C Pillow were the panelists. They began their presentation with a comparison of the 20th and 21st Century perspectives about the use of the Internet in litigation:
20th Century View: “Any evidence procured off the Internet is adequate for absolutely nothing.” St. Clair v. Johnny’s Oyster & Shrimp, Inc. (S.D. Tex. 1999).
21st Century View: A lawyer has a duty of competence to his/her clients (GRPC Rule 1.1). To be ignorant of social media and its interrelationship with the law is unethical at best and, at worst, malpractice.
Their panel discussion followed the litigation process from client intake to after the decision and award. Some highlights:
- Review a potential client’s social media accounts – run a Google search and see what you find.
- Various jurisdictions now allow for service f process via social media and email.
- Social media has created new defendants and expanded duties.
- Social media is accepted as evidence but you must go through the authentication process, etc. to have it entered into the record.
- Social media used in the voir dire of jurors.
- Be careful about using social media before, during, and after trial – publicity rules and Ethical rules must be followed.
Third panel of the day recognized the importance of this year in politics. Tamay Shannon (@Where2start) from W2S Marketing and Ashley Sasnett (@AshleySasnett) from Atlanta joined Gonzalez in looking at the impact social media platforms are having on the politic landscape, specifically this presidential election. The panelists provided examples of social media campaigns and best practices and Gonzalez focused on the legal issues surrounding this use.
Highlights:
- Earned, owned, paid and shared media work together to reach voters.
- FTC Disclosures of hen political speech is free and when it is bought.
- Your social media political team needs to have certain skills in crisis communication, data analytics, writing political speech
- No backyard is private anymore.
- A crisis will happen – how big and how much of an impact it has varies on the response: delete, ignore, repurpose.
- Political donations DO NOT have a limited when they are contributed via online.
- Security has become a major issue for the campaigns – from protecting donor and voter information, to preventing hacks.
- We are getting some decisions from state courts regarding ballot selfies – in some states they are protected freedom of speech. However there is an argument as to whether this can violate the integrity of the voting process.
- Government agencies can use social media but not to post propaganda.
After lunch the anxiously anticipated social media and ethics panel began. Moderated by Paul Andrew it included William J Cobb, Counsel for the State Bar of Georgia and Terri Thornton from Thornton Communications. Christina Petrig, then counsel for the State Bar of Georgia, left many attorneys with more questions regarding “consent” from clients. In response Ms. Thornton worked with her attorney clients to create a series of hypotheticals, and Andrew sent them on to Tina and Cobb. Cobb, Thornton and Andrew then went through the hypothetical scenarios. The short answer is always get consent from your client before you post anything right before you post it. Do not rely on a social media amendment signed at the beginning of the engagement as situations may change and the client may change their mind. Cobb also provided a good paper regarding specific ethical rules to be considered when an attorney uses social media.
The next to the last panel focused on a specific application of social media use within the entertainment industry. Social Media: Celebrities and Public Figures Legalities included Julie K Roach, Esq.(@julieroachesq), Ashley Hollan Couch, Esq. (@CouchLawyer) and Eddie Rhodman, Jr. from DFSM.
Highlights:
- The difference between a celebrity, a public figure and an influencer.
- Review of how celebrities use social media, including to promote change and to stay relevant.
- How brands use celebrities and influencers
- The issue of honesty, authenticity and consumer protection when brands promote using celebrities and influencers.
- The differences between endorsement, sponsorship, advertisement and promotion.
- FTC Endorsement Guidelines (retweets, disclaimers)
- Twitter Whitelisting
The last session of the day was Social Media International Developments by John Yates of Morris, Manning & Martin, LLP. According to Yates this topic is important because “While social media has become ubiquitous across the world in all realms of society, the legal complexity surrounding it remains challenging.
These challenges are daunting in light of the diversity of concerns that must be addressed among different countries that may have inconsistency in the rules and regulations based on new technologies and overlapping jurisdictions. Plus, these applications are changing so quickly that someone who thinks they’ve covered their bases may learn that the landscape has changed drastically in a short period of time. “ John’s session was based on a survey “derived directly from international attorneys (from 16 different countries) with whom I have been involved throughout the ITechLaw organization, a global association of attorneys focused on technology law issues.” The questions addressed by them were:
- Has your country enacted or proposed laws or regulations on social media?
- What organization or governing body promulgates rules and regulations in this area?
- Have there been court cases or administrative decisions relating to the use of social media? If so, I’d be interested in a short summary.
- Do the social media rules vary from province/state/jurisdiction in your country or are they uniform across the country?
- What is your expectation of the future of regulation of social media in your country?
For more information about the program and/or to secure materials from prior year sessions please contact ICLE at http://iclega.org/.
