The California Bar recently published a formal opinion (No. 2012-186) on social media posts and attorney advertising. The specific issue before the Bar was the following: Under what circumstances would an attorney’s postings on social media websites be subject to the professional responsibility rules and standards governing attorney advertising?
According to the Bar: Material posted by an attorney on a social media website will be subject to professional responsibility rules and standards governing attorney advertising if that material constitutes a “communication” with the meaning of rule 1-400 (Advertising and Solicitation) of the Rules of Professional Conduct of the State Bar of California; or (2) “advertising by electronic media” within the meaning of the Article 9.5 (Legal Advertising) of the State Bar Act.
To read the opinion in full go here.
Here is the opinion by the 7th Circuit of Appeals that strikes down an Indiana law prohibiting sex offenders from using social media sites like Facebook. According to the opinion, the statute is too broadly written and violates an individual’s right to free speech. This is the latest in a series of rulings in which similar bans were struck down. Prior to this ruling, courts in Nebraska and Louisiana have struck down similar statutes.
Sherry D. Sanders, Privacy is Dead: The Birth of Social Media Background Checks, 39 S.U. L. Rev. 243 (2012)
Abstract: For years employers have used social networking sites (SNS) such as Facebook, Twitter, MySpace, Google, and LinkedIn to dig up incriminating evidence on prospective or current employees. Now credit reporting agencies (CRA) may conduct “social media background checks” on employees as well. The Federal Trade Commission (FTC) has given companies, like Social Intelligence, the stamp of approval to rummage around the Internet for anything a potential job candidate has done or said online in the past seven years. Both CRAs and employers must comply with the Fair Credit Reporting Act (FCRA).
This article addresses the legal ramifications of social media background checks and the difficulty in applying the FCRA to this new employment practice. A careful review of important provisions governing the FCRA and federal cases that have interpreted the statute illustrate the difficulty in holding CRAs liable for inaccurate or negligent reporting. This article focuses on the application of the FCRA to CRAs, employers, and SNSs. Additionally, the article will look at ways employees are contributing to an invasion of their own privacy. The social media background check practice may prove to be troublesome and detrimental to employees. The author proposes that the practice should be abolished as the risk of harm to employees outweighs the potential benefits to employers.
Unlike traditional identity theft, the crime of online impersonation lacks an economic component. Instead, the criminal defendant conducts the crime of online impersonation in order to harass the victim. The online impersonation can take one of two forms. In the first scenario, the criminal defendant pretends to be the victim. In the second scenario, the criminal defendant pretends to be someone else and then interacts with the victim. While all states have laws against identity theft, not very many have laws against online impersonation.
To be held liable under California law for online impersonation (Penal Code Section 528.5) one must impersonate an actual person. The criminal defendant must also have the purpose of harming, intimidating, threatening, or defrauding another person. Thus, it is unlikely that someone would be charged under this statute for an online parody. The California statute is unique in that it provides a civil remedy for those who have been impersonated. And, unlike the state of Texas which categorizes this crime as a felony, online impersonation is only a misdemeanor in California.
The article below discusses the challenges in prosecuting online impersonation.
ABA Journal: Why ‘catfishing’ is difficult to prosecute
The article below discusses the impact of social media on criminal law. Among other things, this article raises a question about whether an individual can be criminally prosecuted for failing to report a crime that was revealed in a Tweet or Facebook post. As a general rule, individuals do not have a duty to act or report a crime unless they have a special relationship with the victim. It will be interesting to see if social media changes this generally accepted rule of law.
Dayton Daily News: Social media under fire in Steubenville rape case
The article below discusses how Pinterest has become the latest social media platform used by law enforcement to capture suspected criminals. According to the article, Pinterest has become the modern day Post Office with respect to maintaining pictures of wanted criminals.
BuzzFeed: To Pin A Criminal