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Monthly Archives: January 2014

February Seminar on Social Media

In February, PLI is hosting a seminar examining the corporate risks of social media.  This seminar may be of interest to those who want to learn more about social media’s impact on the law and business.  In addition to this seminar, PLI produces a treatise on social media entitled Social Media and the Law

Here is a write up on the seminar.

Did you know that Facebook now has well over one billion monthly active users? (By contrast, the entire population of the United States is 314 million people.) Or that Facebook accounts for over ten percent of all U.S. web traffic? And that over 300 million photographs are posted to Facebook each day? Or that Twitter users are expected to send over 146 billion tweets during 2013? And that over six billion hours of video are viewed each month on YouTube, almost an hour for every person on Earth?

Facebook, Foursquare, Google+, LinkedIn, Pinterest, Tumblr, Twitter, YouTube and other social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Indeed, even the largest, most conservative blue-chip corporations have begun to embrace social media; one study revealed that, of the Fortune Global 100, 82% had Twitter accounts; 74% had a presence on Facebook; and 79% had a YouTube channel; these numbers will only increase over time. Many marketing professionals view social media as the single greatest marketing tool to have emerged in this century.

However, along with the exciting new marketing opportunities presented by social media comes challenging new legal issues. In seeking to capitalize on the social media gold rush, is your company taking the time to identify and address the attendant legal risks? The good news is that, merely by undertaking simple, low-cost precautions, companies seeking to use social media can significantly reduce their potential liability exposure.

Please join us as leading practitioners and industry experts explore the cutting-edge legal concerns emerging from social media, and provide practical solutions and real-world insights to assist you in tackling these concerns.

What you will learn

  • Social media: how it works, and why it is transforming the business world
  • Drafting and updating social media policies
  • User-generated content and related IP concerns
  • Ensuring protection under the CDA’s Safe Harbor
  • Legal issues in connection with online data harvesting
  • Online marketing: new opportunities, new risks
  • Privacy law considerations
  • Practical tips for handling real-world issues

Friend Request by Judge Leads to Recusal

A Florida Appellate court ruled this week that friend requests by judges to parties appearing before them can lead to the judge’s recusal.  According to the appellate court, a friend request

place[s] the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the ‘friend’ request.

This ruling arose from a divorce proceeding in which the judge, prior to entering a final verdict in the case, sent a friend request to the wife. The wife’s attorney later claimed that since the friend request was not accepted the judge retaliated against her client.  Specifically, the wife’s attorney claimed that the judge gave the wife an inordinate amount of the marital debt and saddled her with an excessive alimony award. 

Ultimately, the appellate court assigned this case to another judge and found that the wife had a “well-founded fear of not receiving a fair and impartial trial.” 

Update on the First U.S. Defamation Trial via Twitter

As readers will recall, Courtney Love found herself making legal history last week as the defendant in the first ‘Twibel’ lawsuit to go to trial in the United States.  Love was being sued by her former lawyer for allegedly sending defamatory tweets about the lawyer’s performance.  Among the tweets in dispute was one in which Love claimed that her then attorney had been “bought off.”  This is not the first time that Love has run into problems with Twitter and defamation.  Three years earlier Love paid $430,000 to settle a dispute with a fashion designer over insulting tweets made by Love.

This past friday the jury spent 3 hours deliberating and ultimately sided with Love.  Love celebrated her courtroom victory by sending the following tweet.

Favorite Tweet?

Courtney Love Cobain @Courtney

I can’t thank you enough Dongell Lawrence Finney LLP, the most incredible law firm on the planet.We won this epic battle. #justiceprevails

Attorney Reprimanded for Disclosing Confidential Client Information on Avvo

This case stemmed from an employment lawyer’s representation of a flight attendant who was terminated for assaulting a fellow employee during an actual flight. The flight attendant wanted the lawyer’s assistance in obtaining unemployment benefits. After meeting with the client several times and reviewing his work personnel file, the attorney represented him in a telephonic hearing before the Illinois Department of Employment Security (“IDES”), which is the state agency responsible for determining whether to award unemployment benefits.

Shortly after the hearing and a determination by IDES that the flight attendant was not eligible for unemployment benefits, the flight attendant terminated his relationship with the attorney. Also, at this time, the flight attendant decided to publicly comment about his attorney’s performance on Avvo. The flight attendant made the following posting about his attorney:

She only wants your money, claims “always on your side” is a huge lie. Paid her to help me secure unemployment, she took my money knowing full well a certain law in Illinois would not let me collect unemployment. [N]ow is billing for an additional $1500 for her time.

This comment was subsequently removed by Avvo. However, the client then posted a second review which reads as follows:

I paid Ms. [redacted] $1500 to help me secure unemployment while she knew full well that a law in Illinois would prevent me from obtaining unemployment benefits.

Shortly thereafter, the attorney responded on Avvo to the client’s post with her own post which reads as follows:

This is simply false. The person did not reveal all the facts of his situation up front in our first and second meeting. [sic] When I received his personnel file, I discussed the contents of it with him and informed him that he would likely lose unless the employer chose not to contest the unemployment (employers sometimes do is [sic]). Despite knowing that he would likely lose, he chose to go forward with a hearing to try to obtain benefits. I dislike it very much when my clients lose but I cannot invent positive facts for clients when they are not there. I feel badly for him but his own actions in beating up a female coworker are what caused the consequences he is now so upset about (emphasis added).

The attorney’s post eventually came to the attention of the state bar of Illinois, which decided to investigate. This week the bar issued its decision in which it reprimanded the attorney for revealing confidential information about a former client.

Some in the legal profession feel that the attorney had a right to go online and defend herself from an adverse review just like an attorney who has been sued for malpractice can defend herself in open court. Others think that the attorney went too far when she publicly acknowledged that her client beat up a female co-worker. They believe that the attorney could have successfully defended herself without revealing this additional information.

First U.S. Defamation Trial via Twitter

Courtney Love finds herself making legal history this week.  She is the defendant in the first ‘Twibel’ lawsuit to go to trial in the United States.  Love is being sued by her former attorney for allegedly sending defamatory tweets about the lawyer’s performance.  Among the tweets in dispute was one in which Love claimed that her then attorney had been “bought off.”  This is not the first time that Love has run into problems with Twitter and defamation.  Three years earlier Love paid $430,000 to settle a dispute with a fashion designer over insulting tweets made by Love.

To read more about her current Twibel case go here.

Socially Aware Newsletter

Here is the latest edition of the Socially Aware newsletter.  This is arguably the best social media related newsletter created by a law firm (Morrison Foerster).

Overview: In this issue of Socially Aware, our Burton Award-winning guide to the law
and business of social media, we explore legal concerns raised by Google
Glass; we provide an overview of the growing body of case law addressing
ownership of business-related social media accounts; we take a look
at two circuit court decisions addressing the interplay between social
media usage and the First Amendment; we examine the trend toward
collaborative consumption and associated legal issues; we discuss an
important new decision regarding unilateral modifications to online terms
of use; and we highlight an industry warning to website operators who
collect data for purposes of online behavioral advertising.

Social Media and Rulemaking: New Law Review Article

Using Social Media in Rulemaking: Possibilities and Barriers

By Michael Herz


“Web 2.0” is characterized by interaction, collaboration, non-static web sites, use of social media, and creation of user-generated content. In theory, these Web 2.0 tools can be harnessed not only in the private sphere but as tools for an e-topia of citizen engagement and participatory democracy. Notice-and-comment rulemaking is the pre-digital government process that most approached (while still falling far short of) the e-topian vision of public participation in deliberative governance. The notice-and-comment process for federal agency rulemaking has now changed from a paper process to an electronic one. Expectations for this switch were high; many anticipated a revolution that would make rulemaking not just more efficient, but also more broadly participatory, democratic, and dialogic. In the event, the move online has not produced a fundamental shift in the nature of notice-and-comment rulemaking. At the same time, the online world in general has come to be increasingly characterized by participatory and dialogic activities, with a move from static, text-based websites to dynamic, multi-media platforms with large amounts of user-generated content. This shift has not left agencies untouched. To the contrary, agencies at all levels of government have embraced social media – by late 2013 there were over 1000 registered federal agency twitter feeds and over 1000 registered federal agency Facebook pages, for example – but these have been used much more as tools for broadcasting the agency’s message than for dialogue or obtaining input. All of which invites the questions whether agencies could or should directly rely on social media in the rulemaking process.

This study reviews how federal agencies have been using social media to date and considers the practical and legal barriers to using social media in rulemaking, not just to raise the visibility of rulemakings, which is certainly happening, but to gather relevant input and help formulate the content of rules.

The study was undertaken for the Administrative Conference of the United States and is the basis for a set of recommendations adopted by ACUS in December 2013. Those recommendations overlap with but are not identical to the recommendations set out herein.