Lions, Tigers & Friends: Legal Issues in the Social Media Sandbox! Francine Ward, Attorney

LIONS, TIGERS & FRIENDS:

LEGAL ISSUES RESULTING

FROM PLAYING IN THE

SOCIAL MEDIA SANDBOX!

Copyright 2010 Francine D. Ward. All Rights Reserved. 1

American Bar Association | Annual Conference

August 5-8, San Francisco, CA

Objectives

Copyright 2010 Francine Ward. All Rights Reserved.

• Identify Social Media Legal Landmines

• Potential Ethical Landmines

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Legal Landmines…3


Landmine #1


Not having a Social Media Use

Policy

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What goes in the policy?


1. Define what is included in “social media”, e.g., blogging, tweeting, browsing Facebook, Myspace, virtual worlds, etc.

2. Let them know what you expect3. Let them know what is a breach of the policy4. Explain there is no “expectation of privacy”5. Inform them that you will monitor their

email, computer, telephone, cell phone, laptop

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Who should know about the policy?


1. Staff2. Temporary staff3. Independent contractors4. Clients with access to your computers5. Project Collaborators

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Landmine #2


Not communicating the policy

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Landmine #3


Not enforcing the policy

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Landmine #4


Thinking Delete = Delete

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Landmine #5


Making defamatory statements on

social media sites

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Landmine #6


Making false & misleading statements

regarding your products/services

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Landmine #7


Copyright Infringement

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Landmine #8


Trademark Infringement

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Landmine #9


Not Protecting Your

Content – making sure you own what you think you own!

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Copyright Ownership


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The general rule is that the copyright owner is the person who creates the original work of art/authorship.

EXCEPT … where there’s a contract or it’s a


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Work Made for Hire


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What happens when content is created on top

of existing content, i.e. Facebook, Second Life, Twitter. Who owns it?

Landmine #10


Not reading & understanding “Terms of Use”

BEFORE you accept them

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Meaning of Selected Provisions


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You give us all rights necessary to enable your application to work with … , including the right to:

1. incorporate your content into streams, profiles, and user action stories;

2. place content, including ads, around your application.

Second Life “Terms of Use”


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3.2 You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law. However, you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification, to Linden Lab and to other users of Second Life. ..

Summary


1. Have, communicate, enforce a Social Media Use policy

2. Think before you Tweet, Blog, or post to a Chat3. Get permission 4. Tell the truth about your products/service5. Know that delete DOES NOT = DELETE6. Read Terms of Use carefully

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Ethical Landmines22


Ethical Landmines


1. Unauthorized Practice of Law2. Advertising and Solicitation 3. Communicating with a Represented Party4. Conflicts of Interest5. Disclosure of Confidential Information

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Ethical Landmine #1


CA Rule 1-300 Unauthorized Practice of Law

A. A member shall not aid any person or entity in the unauthorized practice of law.

B. A member shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.

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Ethical Landmine #2


CA Rule 1-400 Advertising & Solicitation

A. For purposes of this rule, "communication" means any message or offer made by

or on behalf of a member concerning the availability for professional employment of

a member or a law firm directed to any former, present, or prospective client,

including but not limited to the following:

1. Any use of firm name, trade name, fictitious name, or other professional

designation of such member or law firm; or

2. Any stationery, letterhead, business card, sign, brochure, or other

comparable written material describing such member, law firm, or

lawyers; or

3. Any advertisement (regardless of medium) of such member or law firm

directed to the general public or any substantial portion thereof; or

4. Any unsolicited correspondence from a member or law firm directed to

any person or entity.

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… Rule 1-400 continued


B. For purposes of this rule, a "solicitation" means any

communication:

1. Concerning the availability for professional

employment of a member or a law firm in which a

significant motive is pecuniary gain; and

2. Which is:

a) delivered in person or by telephone, or

b) directed by any means to a person known to

the sender to be represented by counsel in a

matter which is a subject of the

communication.

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C. A solicitation shall not be made by or on behalf

of a member or law firm to a prospective client

with whom the member or law firm has no

family or prior professional relationship, unless

the solicitation is protected from abridgment by

the Constitution of the United States or by the

Constitution of the State of California. A

solicitation to a former or present client in the

discharge of a member's or law firm's

professional duties is not prohibited.

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E. The Board of Governors of the State Bar shall formulate and adopt

standards as to communications which will be presumed to violate this

rule 1-400. The standards shall only be used as presumptions affecting

the burden of proof in disciplinary proceedings involving alleged

violations of these rules. "presumption affecting the burden of proof"

means that presumption defined in Evidence Code sections 605 and

606. Such standards formulated and adopted by the Board, as from time

to time amended, shall be effective and binding on all members.

F. A member shall retain for two years a true and correct copy or recording

of any communication made by written or electronic media. Upon written

request, the member shall make any such copy or recording available to

the State Bar, and, if requested, shall provide to the State Bar evidence

to support any factual or objective claim contained in the communication

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Ethical Landmine #3


CA Rule 2-100 Communication With a Represented Party

A. While representing a client, a member shall not communicate directly or indirectly about

the subject of the representation with a party the member knows to be represented by

another lawyer in the matter, unless the member has the consent of the other lawyer

B. For purposes of this rule, a "party" includes:

1. An officer, director, or managing agent of a corporation or association, and a

partner or managing agent of a partnership; or

2. An association member or an employee of an association, corporation, or

partnership, if the subject of the communication is any act or omission of such

person in connection with the matter which may be binding upon or imputed to the

organization for purposes of civil or criminal liability or whose statement may

constitute an admission on the part of the organization.

C. This rule shall not prohibit:

1. Communications with a public officer, board, committee, or body; or

2. Communications initiated by a party seeking advice or representation from an

independent lawyer of the party's choice; or

3. Communications otherwise authorized by law.

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Ethical Landmine #4


CA Rule 3-100 Confidential Information of a ClientA. A member shall not reveal information protected from disclosure by Business and Professions Code

section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in

paragraph (B) of this rule.

B. A member may, but is not required to, reveal confidential information relating to the representation of

a client to the extent that the member reasonably believes the disclosure is necessary to prevent a

criminal act that the member reasonably believes is likely to result in death of, or substantial bodily

harm to, an individual.

C. Before revealing confidential information to prevent a criminal act as provided in paragraph (B), a

member shall, if reasonable under the circumstances:

1. make a good faith effort to persuade the client: (i) not to commit or to continue the

criminal act or (ii) to pursue a course of conduct that will prevent the threatened death or

substantial bodily harm; or do both (i) and (ii); and

2. inform the client, at an appropriate time, of the member's ability or decision to reveal

information as provided in paragraph (B).

D. In revealing confidential information as provided in paragraph (B), the member's disclosure must be

no more than is necessary to prevent the criminal act, given the information known to the member at

the time of the disclosure.

E. A member who does not reveal information permitted by paragraph (B) does not violate this rule.

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Relevant California State Bar Ethical Opinions


1. Attorney Advertising – 2001-155

2. Attorney/Client Privilege – 2003-161

3. Web site Disclaimers – 2005-168

4. Chat Room Discussions – 2004-166

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Francine D. Ward, Esq.


Feel free to contact me in any number of ways:

Francine D. WardLaw Ofc. Of Francine D. Ward775 E. Blithedale, Suite 325

Mill Valley, CA 94941

(415) 389-0975(415) 389-0976 [fax]

[email protected]/francineward

www.facebook.com /Francineward (Business | Intellectual Property Lawyer)

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mailto:[email protected]

http://www.twitter.com/francineward

http://www.facebook.com/

Lions, Tigers & Friends: Legal Issues in the Social Media Sandbox! Francine Ward, Attorney

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Transcript of Lions, Tigers & Friends: Legal Issues in the Social Media Sandbox! Francine Ward, Attorney