Social Media

Social Media and the Law

Last year, my wife finished law school in New York’s capital.  As a member of the American Bar Association, she receives their monthly ABA Journal, and every month (without fail) she leaves it on my desk with a sticky note bookmarking an article on “Social Media” as it relates to the law.  [I love her!]

Now, I’m no lawyer; but as an entrepreneur the law is something I need to keep an eye on for my business.  From a lawyer’s standpoint, however, there’s nothing more exciting than arguing a case for which there is little or no precedent.  And there seems to be few areas of the law more fruitful these days than when it includes Social Media.  As a result, we’re seeing a growing number of cases where the the two converge and this trend shows no signs of slowing down.  So whether you’re involved in Social Media for business or personal reasons, paying attention to some of these hot button issues might be wise.  Here’s just a few:

Privacy

Despite Facebook’s constant criticism for their privacy policies, there’s little about what they’ve done that actually pertains to the law.  Regardless of whether or not you agree with some of the changes and/or policies, their service depends upon people sharing information, and may always default to such.  What people need to understand is that even for those who have mastered Facebook’s privacy settings, everything that you put online can be used against you in court.

While E-mail had a recent 4th amendment victory against warrant-less seizure by the government, nothing has been decided for other social medium, making even private messages vulnerable to the Stored Communications Act.  Further, what most people fail to realize: if you are ever charged with a crime or being sued civilly, anything (including E-mail) can be subpoenaed as evidence.  In other words: despite your 4th amendment rights, assuming that what you wrote in a Facebook message will never be seen by others is a faulty assumption.

All this aside, even with the strictest of privacy settings, a person’s “reasonable expectation of privacy” that the 4th amendment protects, becomes a very gray area for social media considering the semi-public and sharing-centric nature of the medium.  This is something that may be debated in courts for years, and the character of the arguments and decisions will be heavily influenced by the understanding (or lack thereof) of the technology.

Employment Decisions

Employers are fully aware of Facebook.  Many of them use it as a way to pre-qualify candidates, and quite a few employees have been fired for their social media activity.  But even if difficult to prove sometimes, the laws governing this type of action are quite specific.  Employers must understand what information can be used in hiring & firing, as well as promoting & demoting employees.  Depending on the state, things like sexual preference, age, disabilities, marital status, and more may be illegal to use when making these types of decisions and can make employers vulnerable to discrimination lawsuits

When it starts to get really interesting, however, is where some employers have taken a proactive approach in limiting their employees’ online activity.  There has already been some early lines drawn as to what the limits can and can’t include.  For example: ‘concerted protected activity’ (such as discussing work conditions with co-workers) may in fact extend to Facebook and other social media activity if it qualifies as such.  Employers must be careful not to be too broad in these policies as a result.

From a user’s standpoint, whether employee or applicant, it would be wise to keep tabs on your privacy settings and also ensure your social activity stays clean and appropriate regardless.  Attempting to hide behind privacy and/or the above mentioned laws is often a vital mistake.

Copyright Law

Copyright laws have always been a bit of a gray area, but that principle has been magnified thanks to the internet.  Social media has changed the way multimedia and information is spread.  In fact, those of us who participate in social media marketing are literally attempting to take advantage of that.  But copyrights and trademarks are there as protection for misuse.  So the laws must extend into this realm as well.

While fair use is a common defense for use of copyrighted material, the law’s definitions of such are quite murky.  A lot is up to interpretation of the courts, and some copyright holders are taking advantage of this, and the fact that settlements may be less expensive than a winning defense.  While bloggers must be extremely careful when citing and/or using copyrighted material, there may be a point when simply sharing such material on Facebook could be under attack as well. (as the fortune article [link] suggests)

FTC & Other Regulations

In 2009, the FTC updated its guidelines for disclosing sponsored affiliations online.  In it, even bloggers are now required to clearly disclose all endorsements and advertisements.  So while that is nothing brand new, the debate continues for how this law applies to social media outlets such as Facebook and Twitter.  With only 140 characters, some find it difficult to save room for such disclosures.  But while technically it is necessary, you do not need to go out of your way to spot affiliate links that fail to meet this standard.

Other regulations that may be industry specific, such as the pharmaceutical, health care, and financial industries still apply to social media.  Companies in regulated industries conducting social media marketing campaigns, must understand the limits of the medium (including meta data) and how to properly include required disclaimers.   Failure to comply with these regulations can lead to severe consequences.

Social Media Vs. The 1st Amendment

As an American, the first amendment is one of the most important rights we have.  But the “freedom of speech” isn’t an absolute right.  There can be consequences for what you say or write, and nothing has magnified the effect of this quite like social media.

Cyber bullying is very real.  It’s an unfortunate consequence of a web where anonymity and/or the impersonal nature of the medium creates an ugly form of boldness cowardice.  It is, however, something that we are now well aware of, and the penalties for which are aptly harsh.

Other examples of speech that is not necessarily protected under the first amendment is defamation, slander, and libel.  Courtney Love is currently being sued for such offenses on her twitter account.  A case that many legal professionals are keeping an eye on, as it may set a precedent for future cases.

Social Media Identity Theft & Anonymity

Recent talk about a national “Internet ID” program has some a bit nervous.  Although the plan is reportedly currently opt-in, critics still worry about privacy issues it may cause while proponents hold on to hope that it helps reduce the unfortunate and sometimes dangerous consequences of internet anonymity.
On the flip side of the coin is a problem that some feel Twitter must do better to deal with: social media identity theft.  Persons imitating celebrities or other highly influential figures can have a damaging effect to that individual and to those who are fooled by the ruse.   While suing twitter has been proven to be a dead end (just ask Tony La Russa), it doesn’t mean that the issue won’t come up again and again.

My Disclaimer:

I’d just like to end this article by repeating that I’m (in fact) NOT a lawyer.  None of the above should be taken as legal advice.  My goal with this article was to simply bring to light some current issues as it pertains to the Law and Social Media so that social media users, marketers, and others can better educate themselves on these issues.  ALWAYS consult a lawyer in order to confirm the laws contained within.  Thanks for reading!

 Social Media and the Law

Todd Heim

Todd Heim is CEO, co-founder, and SEO manager of Essential Internet Marketing, LLC, an SEM and Social Media Marketing company based in Albany, NY.

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7 thoughts on “Social Media and the Law

  1. I’m a lawyer, so let me fill in one other area. One of the biggest issues relates to the use of social media in discovery in civil litigation. Conversations with attorneys are privileged. Conversations with doctors are privileged (unless you are bringing a personal injury case.)

    Posts to social media sites, even private messages, are not protected by any sort of legal privilege. Indeed, they can be open season on your personal information: there is an off-the-wall case here in Pennsylvania in which the plaintiff was forced to give over their Facebook username and password to the defense attorneys so that they could comb through it to find evidence to use against her.

    Should you live your life differently just because one day you might be in the lawsuit? No. But everyone needs to understand that, particularly if they are already in a lawsuit, everything that they write anywhere – on a blog, on twitter, even in a private message to a friend on Facebook – might come out one day via a lawsuit.

    1. Max, thanks for the comment. I think that’s a very important point. Most users take for granted that what they write will never be seen because of privacy ‘settings’, but there’s little protection when civil or criminal legal cases are in play.

  2. Privacy is going to be a big concern with social. I don’t think that people really understand how much of their information is being tracked.

  3. Privacy is just an illusion these days and as the Social Web grows, those trying to enforce the law will find it difficult to do so. Scary, isn’t it? Just who controls these data?