Social Media Legal Landmines

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

LIONS, TIGERS & FRIENDS:
LEGAL ISSUES RESULTING
FROM PLAYING IN THE
SOCIAL MEDIA SANDBOX!
American Bar Association | Annual Conference
August 5-8, San Francisco, CA

2
Objectives
• Identify Social Media Legal Landmines
• Potential Ethical Landmines

Copyright 2010 Francine Ward. All Rights Reserved.

3 Legal Landmines…


Landmine #1
4

Not having a
Social Media Use
Policy


What goes in the policy?
5

1. Define what is included in “social media”,
e.g., blogging, tweeting, browsing Facebook,
Myspace, virtual worlds, etc.
2. Let them know what you expect
3. Let them know what is a breach of the policy
4. Explain there is no “expectation of privacy”
5. Inform them that you will monitor their
email, computer, telephone, cell phone,
laptop


Who should know about the policy?
6

1. Staff
2. Temporary staff
3. Independent contractors
4. Clients with access to your computers
5. Project Collaborators


Landmine #2
7

Not communicating
the policy


Landmine #3
8

Not enforcing
the policy


Landmine #4
9

Thinking
Delete = Delete


Landmine #5
10

Making defamatory
statements on
social media sites


Landmine #6
11

Making false &
misleading statements
regarding your
products/services


Landmine #7
12

Copyright
Infringement


Landmine #8
13

Trademark
Infringement


Landmine #9
14

Not
Protecting Your
Content – making sure you own
what you think you own!


Copyright Ownership
15

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


16

Work Made for Hire


17

What happens when
content is created on top
of existing content, i.e.
Facebook, Second Life,
Twitter. Who owns it?


Landmine #10
18

Not reading &
understanding
“Terms of Use”
BEFORE
you accept them

Meaning of Selected Provisions
19

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”
20

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
21

1. Have, communicate, enforce a Social Media Use
policy
2. Think before you Tweet, Blog, or post to a Chat
3. Get permission
4. Tell the truth about your products/service
5. Know that delete DOES NOT = DELETE
6. Read Terms of Use carefully


22 Ethical Landmines


Ethical Landmines
23

1. Unauthorized Practice of Law
2. Advertising and Solicitation
3. Communicating with a Represented Party
4. Conflicts of Interest
5. Disclosure of Confidential Information


Ethical Landmine #1
24

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.


Ethical Landmine #2
25

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.


… Rule 1-400 continued
26

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.


27

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.


28

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


Ethical Landmine #3
29

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.

Ethical Landmine #4
30

CA Rule 3-100 Confidential Information of a Client
A. 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.


Relevant California State Bar Ethical Opinions
31

1. Attorney Advertising – 2001-155

2. Attorney/Client Privilege – 2003-161

3. Web site Disclaimers – 2005-168

4. Chat Room Discussions – 2004-166


Francine D. Ward, Esq.
32

Feel free to contact me in any number of ways:

Francine D. Ward
Law Ofc. Of Francine D. Ward
775 E. Blithedale, Suite 325
Mill Valley, CA 94941

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

info@fwardlawyer.com
www.twitter.com/francineward
www.facebook.com /Francineward (Business | Intellectual Property Lawyer)


Social Media Legal Landmines

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