United States: Before You Post: Best Practices For Providing Advice On Social Media Topics

For better or worse, with a few swipes of a touch screen at any time and in any place, each of us has the ability to share content with the world. Whether it be a tweet, check in, tag, like, post or pin, social media — defined academically as "a group of Internet-based applications that build on the ideological and technological foundations of Web 2.0, and that allow the creation and exchange of User Generated Content" — has changed the ways we use the Internet and the ways we communicate.¹

Recent statistics indicate that almost 20 percent of time, or nearly one of every five minutes, spent online is spent on social networking sites.²

Legal and ethical issues raised by social media participation are found in nearly every practice area: Should lawyers or parties contact opposing parties, opposing counsel, or a judge via Facebook or LinkedIn — should they follow their Twitter feeds? How does a duty to preserve evidence apply to social media content? — what can be preserved? How can impeaching evidence from a party's social media activity be used and who controls the material? What recourse does a business have for false statements posted in anonymous reviews? What liability exists if copyrighted material is posted on a business's Facebook page by a third party? How can companies prevent others from incorporating their trademarks into domain names and user names? What rules apply to contests run through social media? Can companies offer discounts or free products in exchange for a "like," "pin," or "check in"? Should employers review job applicants' social media profiles? Can employers require employees to disclose their social media activity? The list could go on.

Stated plainly, lawyers cannot ignore social media. Regardless of your personal social media habits, you are likely to run into some of these issues in your practice. As technology continues to evolve, there may not be clear case law addressing the situation facing you or your client. Below are several pointers to providing advice on social media related legal concerns.

Tip 1: Educate yourself on how various types of social media operate.

As lawyers, we have an ethical duty of competency.³ While many lawyers choose not to engage in social media (some out of an abundance of caution to avoid ethical risks) failing to familiarize yourself on how social media networks work and being unfamiliar with the associated legal issues in your practice area could be considered an ethical violation.⁴ For example, a lawyer telling clients to remove their social media profiles before filing a lawsuit could create spoliation. Not understanding the nature of re-tweets could impact a lawyer's ability to advise clients on intellectual property or defamation issues arising out of content that was tweeted.

The largest social media networks in the United States in terms of unique visitors were Facebook, LinkedIn, Twitter, Myspace and Tumblr between October 2010 and October 2011.⁵ All lawyers should at least visit these sites and review information about what they offer and how they work.

Tip 2: Remember that social media is always changing.

In connection with learning about social media sites, it's important to realize that they are constantly changing. In the past decade, Facebook has gone from a restricted network at select universities to a network that reaches 55 percent of the world and accounts for three of every four minutes spent on social media.⁶ Advice given a few years ago or even a few months ago may no longer be applicable if the functionality and capability of the social network has changed.

For example, Facebook currently has developed functionality to archive a profile and to review a user's activity (subject to privacy controls) that did not previously exist. The best practices for preserving evidence with these tools inevitably is not the same as it was before they existed. As another example, requiring employees to include a disclaimer that their postings do not reflect the opinions of their employers can be logistically difficult. Each platform has its own place where the disclaimer may or may not be visible. When viewers utilize various apps to view posts on smartphones or other devices, those disclaimers may no longer be visible. When a site has design changes, advice on disclaimer locations should be reviewed to make sure it is still applicable.

Tip 4: User terms and policies are not set in stone.

All social media platforms have terms for those who use their sites. When a client has an issue specific to a certain forum, review these terms. However, keep in mind that the terms often change as the law continues to evolve. Consider the time period at issue and determine if there is a different version of the terms that may be applicable. Along the same lines, carefully review any case law or other guidance addressing to see if they are still applicable if the user terms have been revised.

Tip 5: Always remember ethical obligations.

Last but certainly not least, as attorneys we are always governed by the Rules of Professional Conduct. Tennessee does not have any professional conduct rules related specifically to social media, and the Board of Professional Responsibility has not issued any opinions related to social media. However, rules about client confidences, solicitations, and advertisements apply no less in the social media context than in means of traditional communications.

I hope these tips will be a helpful starting point when social media issues arise in your practice — not only for the questions that exist today, but for the multitude of considerations that will arise as technology continues to change the ways we interact.

Originally published in Nashville Bar Association Young Lawyers Division - October 2012

Footnotes

1 Andreas M. Kaplan & Michael Haenlein, Users of the World, Unite! The Challenges and Opportunities of Social

Media, 53 BUS. HORIZONS 59, 61 (2010).

2 Nick Clayton, Social Networks Acount for 20 Percent of Time Spent Online, The Wall Street Journal, December 22, 2011, available at: http://blogs.wsj.com/tech-europe/2011/12/22/social-networks-account-for-20-of-time-spent-online/.

3 Tenn. Sup. Ct. R. 8, RPC 1.1.

4 Margaret M. DiBianca, Ethical Risks Arising From Lawyers' Use Of (And Refusal to Use) Social Media, 12 Del. L. Rev. 179 (2011) (questioning whether competency standards require lawyers to have a basic familiarity with

social media).

5 comScore, It's a Social World: Top 10 Need-to-Know About Social Networking and Where It's Headed, available at: http://www.comscore.com/Press_Events/Presentations_Whitepapers/2011/it_is_a_social_world_top_10_need-to-knows_about_social_networking .

6 Id.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.