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Socially Aware Blog

The Law and Business of Social Media

Social Links—Fines for social-media-posting jurors; Microinfluencers; Snapchat’s and Tinder’s sketchy new features

Posted in Advertising, Disappearing Content, Litigation, Privacy

A lawsuit alleges this Snapchat feature is making driving even more dangerous, and it’s not texting or instant messaging.

This state is considering imposing hefty fines on jurors who post information to social media about the lawsuits they’re hearing.

Facebook pulls back the veil (ever so slightly) on political ads.

The exposure of the personal data of more than one million members of the dating site BeautifulPeople.com might inspire schadenfreude, but everyone is probably vulnerable to “shame hacking.”

Speaking of embarrassing revelations, a new Tinder feature is automatically displaying which of a participant’s Facebook friends—even married friends—are also using Tinder. Oops.

Sharing on Facebook is declining. Is Snapchat to blame?

A surprising nine out of 20 of the companies advertising on Instagram’s app received venture capital funding in the last year.

Did you know that once a social media influencer’s following grows beyond a certain point, engagement actually drops? It turns out “micro-influencers” are the ones having maximum impact.

You’ll never believe how many views Snapchat Stories are getting every day.

Now Available: The April Issue of Our Socially Aware Newsletter

Posted in Advertising, Digital Content, E-Commerce, Employment Law, European Union, Internet of Things, IP, Labor Law, Privacy, Terms of Use

04_21_Apr_SociallyAware_v6_Page_01The latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award winning guide to the law and business of social media. In this edition, we discuss what a company can do to help protect the likes, followers, views, tweets and shares that constitute its social media “currency”; we review a federal district court opinion refusing to enforce an arbitration clause included in online terms and conditions referenced in a “wet signature” contract; we highlight the potential legal risks associated with terminating an employee for complaining about her salary on social media; we explore the need for standardization and interoperability in the Internet of Things world; we examine the proposed EU-U.S. Privacy Shield’s attempt to satisfy consumers’ privacy concerns, the European Court of Justice’s legal requirements, and companies’ practical considerations; and we take a look at the European Commission’s efforts to harmonize the digital sale of goods and content throughout Europe.

All this—plus an infographic illustrating the growing popularity and implications of ad blocking software.

Read our newsletter.

Judge in High-Profile Case Obtains Attorney Agreement Not to Engage in Juror Social Media Snooping

Posted in Litigation

scientific_CloudComputing45It seems that almost everyone uses social media today. Of course, this means that most every juror is a social media user, and that courts are dealing with the thorny questions that arise out of the proliferation of social media usage among jurors.

Like the long-standing practice of warning jurors not to talk about the case with friends and family or to read press reports about the case during the course of trial, courts now routinely caution jurors not to send messages about the case through social media, tweet about the case or look for reports about the case on social media sites. Courts are also taking notice of the potential pitfalls that arise when attorneys poke around prospective jurors’ social media sites to try to decide who may be a friendly (or unfriendly) juror.

Recently, a federal court in the Northern District of California addressed this subject in the high-profile copyright case Oracle v. Google. The case concerns allegations that Google unlawfully incorporated parts of Oracle’s copyrighted Java code into the Android operating system.

In a recent order, the court asked counsel for Oracle and Google to refrain from conducting any Internet research on potential or empaneled jury members prior to the trial verdict. Because an outright ban would have the unintended consequence of prohibiting the lawyers for the parties—but no one else in the courtroom—from accessing online information on the jurors, the court opted instead to seek the parties’ agreement to a voluntary ban. As added incentive to reach agreement, the court offered counsel for both sides extra time to screen potential jurors during voir dire. Both parties ultimately agreed to the voluntary ban.

The court cited three reasons to support its decision to seek the ban.

First, the court reasoned that jurors, upon learning that counsel was investigating them, might be tempted to investigate the lawyers and the case online themselves. And because there is plenty of information online about the high-profile dispute, the court saw an “unusually strong need” to deter any jury member from conducting out-of-court research. The court noted, for example, that a Google search for “Oracle v. Google” yields almost one million hits, and that both parties have hired online commentators to promote their respective sides of the case on blogs and other websites. Because the large amount of online commentary in particular could present a significant risk to a fair hearing, a ban would help ensure that the jury reaches a verdict on the basis of trial evidence only.

Second, the court ruled that online jury research could enable counsel to make “improper personal appeals” to individual jurors during jury argument. For instance, if counsel learns through a social media search that a juror’s favorite book is To Kill a Mockingbird, counsel could, in an attempt to capture the attention of an empaneled juror, craft an argument regarding copyright law that weaves in references to that book and the recent death of Harper Lee. The court reasoned further that such calculated appeals would be “out of bounds” because the judge might not “see what was really in play.”

Third, a voluntary ban would protect the privacy of potential jurors. Because “[t]hey are not celebrities or public figures,” the court ruled that the privacy of potential jurors should not be invaded except to reveal bias or a disinclination to follow court instructions. In anticipation of the argument that potential jurors choose to expose themselves to public scrutiny through their social media privacy settings, the court ruled that “understanding default settings is more a matter of blind faith than conscious choice.”

The court’s approach creates new precedent in the area of jury selection procedure, where to date parties have been left with little guidance. Indeed, the court itself recognized that “there are precious few decisions” that address the specific issue of whether counsel may conduct Internet and social media research on jurors in their cases.

Existing guidance on this issue stems largely from the American Bar Association (ABA), which has stated that counsel’s “passive review” of a juror’s website or social media profile, while refraining from making access requests to jurors, does not violate ethical rules on ex parte jury communications. That being said, even the ABA has cautioned that courts may limit social media research in certain cases.

Similarly, the New York State Bar Association (NYSBA) advised recently that, prior to jury selection, judges should address and resolve, on a case-by-case basis, use of social media by attorneys for the purpose of investigating jurors. Relevant questions to consider include what social media services attorneys may review; which social media platforms counsel or her reviewing agent (e.g., a jury consultant) is a member of; and whether results of social media monitoring will be shared with opposing counsel and the court.

The Google v. Oracle decision represents a key step toward marking clear boundaries for social media and Internet investigation by counsel. Further, the decision shows that, left unchecked, online jury research could lead to improper jury appeals, unwarranted privacy invasions, and—perhaps most importantly—compromise of the fair trial process.

As social media use continues to proliferate, we can expect that courts and bar associations will provide further guidance on how attorneys can properly use social media to research the background of both prospective and sitting jurors.

For more on ethical considerations arising from social media use by attorneys, see our recent blog post on New Jersey Supreme Court Questions Ethics of “Friending” a Litigation Foe.

Website Terms of Use: Check That Box!

Posted in Terms of Use

Many of my clients ask how they can best ensure that their websites’ terms of use are enforceable. Is it really necessary to require the website’s users to check a box or click a button manifesting affirmative assent? In this portion of my video on website terms of use, I explain what the courts have had to say about that.

For more information on this subject, see my earlier video post on Website Terms of Use: Are They Really Necessary?

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New Jersey Supreme Court Questions Ethics of “Friending” a Litigation Foe

Posted in Litigation

0426FRIENDS_imageAttorneys often research adverse parties online to obtain potentially useful—and publicly available—evidence for use in a case. But, as an ethical matter, may an attorney access information available only through an adversary’s private social media account?

The New Jersey Supreme Court just considered this question in a professional-misconduct complaint involving “Facebook spying” of a plaintiff by opposing counsel. In a recent ruling, the court held that attorneys who access an opposing party’s private Facebook account without proper consent may face discipline for unethical conduct.

The disciplinary case arises out of a personal injury matter, in which the plaintiff sued the borough of Oakland, New Jersey, over injuries he sustained after allegedly being hit by a local police cruiser in 2007. Although the plaintiff had a private Facebook page, the borough’s defense attorneys enlisted a paralegal at their firm to send a Facebook friend request to the plaintiff. The paralegal did not identify herself as an agent of defense counsel, and the plaintiff accepted the paralegal’s request without realizing that she worked for the borough’s counsel.

But when the defense attorneys later sought to introduce printouts of the plaintiff’s Facebook page at trial and included the paralegal on their witness list, the plaintiff realized that opposing counsel had been spying on him through the paralegal.

The plaintiff brought the conduct of defense counsel to the attention of the New Jersey Office of Attorney Ethics, which is now investigating the matter. The Office of Attorney Ethics alleges in a complaint filed with a state ethics committee that defense counsel had violated numerous New Jersey Rules of Professional Conduct. These violations include, for example, improper communication with a person represented by counsel; failure to supervise a non-lawyer assistant; and engaging in “dishonesty, fraud, deceit, or misrepresentation.” The defense attorneys claim that they acted in good faith and that they were unfamiliar with the privacy settings on Facebook.

To be clear, no final decision has been issued on the merits of this case, as the New Jersey Supreme Court’s ruling confirms only that the Office of Attorney Ethics has discretion to review the ethics complaint. The case will now proceed to a merits hearing.

But even if New Jersey has yet to rule definitively on the ethics of social media spying, existing guidance offers a cautionary note. For example, the New York City Bar Association has stated that “[a] lawyer may not attempt to gain access to a social networking website under false pretenses, either directly or through an agent.” Similarly, the Massachusetts Bar Association has stated that party counsel may “friend” an unrepresented adversary only when that lawyer discloses his or her identity as the party’s lawyer. Likewise, the Philadelphia Bar Association has held that an attorney may seek access to the private social media page of a witness only by doing so “forthrightly,” or by revealing that he or she is an attorney in the litigation.

Attorneys would do well, therefore, to ensure that they do not contact an adversary on social media—and especially not without first identifying whom they represent. Engaging in subterfuge to gain access to the private social media site of an adversary is likely to get you into hot water.

Website Terms of Use: Are They Really Necessary?

Posted in Terms of Use

As a social media lawyer, I work closely with website operators and other clients to help reduce the risk of liability that can arise from doing business online. One of the key ways to minimize online legal risks is to use a carefully drafted online Terms of Use agreement. In my new video below, I discuss how website operators use terms of use to mitigate risk and liability, and explain the difference between “clickwrap” and “browsewrap” terms of use.

To stay abreast of social media-related legal developments, please subscribe to our free newsletter.

Social Links—Facebook-spying litigators; employees’ social media posts; Europe’s Right To Be Forgotten

Posted in Employment Law, Ethics, European Union, FTC, Litigation, Online Endorsements, Privacy, Protected Speech

Defense lawyers who checked out the Facebook page of a plaintiff suing their client can be prosecuted for attorney misconduct, New Jersey judge rules.

Norwegian band changes its name to avoid “social media censorship.”

Can public agencies control their employees’ social media posts?

Google has complete discretion over whether or not to grant “right to be forgotten” requests. Some people question the sense of that.

This U.K. bar offers to save its customers from bad Tinder dates.

Why are boys at lower risk for the toxic effects of social media than girls?

New data indicates that choice of social channel, headlines and post length can maximize shares on social media.

Will the new Down to Lunch networking app continue to grow in popularity despite hitting some all-too-common social media snags?

The NYPD’s anti-encryption #UnlockJustice social media campaign fails. Big time.

These puppies earn HOW MUCH per Instagram post?! They’d better be in compliance with the FTC’s disclosure rules.

To stay abreast of social media-related legal developments, please subscribe to our free newsletter.

Mixed Messages: Courts Grapple With Emoticons and Emoji

Posted in Litigation

smile_iconiStock_000047419566_SmallEmoticons—such as :-)—and emoji—such as 樂—are ubiquitous in online and mobile communications; according to one study, 74 percent of Americans use emoticons, emoji and similar images on a regular basis.

Given their popularity, it comes as no surprise that courts are increasingly being called upon to evaluate the meaning of emoticons and emoji that are included in material entered into evidence, an exercise that has highlighted just how subjective—and fact-specific—interpretations of these symbols can be.

For example, in a opinion last year dismissing a male law school student’s suit against local police and a female classmate for having the male student formally investigated based, at least in part, on text messages that he had sent, a federal district court in Michigan held that the male student’s text messages showed that he may have had an intent to harass the female classmate despite “the inclusion of the emoticon, a ‘-D,’ which appears to be a wide open-mouth smile.” The court held that the emoticon “does not materially alter the meaning of the text message,” in which the male student otherwise wrote that he wanted to do “just enough to make [the female student] feel crappy.”

On the other hand, in a separate case, also arising in Michigan, the Michigan Court of Appeals held that the ‘:P’ emoticon accompanying a comment allegedly accusing a city worker of corruption made it “patently clear that the commenter was making a joke.”

Here are some other notable instances in which emoticon and emoji were among the evidence courts were asked to evaluate:

  • In sexual harassment case brought by the female co-CEO of a Delaware corporation against her partner, opinion issued last summer, the Delaware Chancery Court held that a “smiley-face emoticon at the end of [the defendant’s] text message suggests he was amused by yet another opportunity to harass the plaintiff.
  • In the January trial of a California man accused of operating a black market called Silk Road over the Internet, the judge instructed the jury members that they should take into account the emoji included in the social media posts and other electronic communications submitted into evidence, stating that the emoji are ”part of the evidence of the document.” (The defendant, Ross Ulbricht, was ultimately convicted of all seven of the counts he faced; the government’s evidence that he ran “Silk Road’s billion-dollar marketplace under the pseudonym the Dread Pirate Roberts was practically overwhelming.”)
  • In a petition for certiorari by Anthony Elonis, a Pennsylvania man whose conviction for posting threatening status updates to Facebook was ultimately overturned by the U.S. Supreme Court last year, Elonis cited his inclusion of the emoticon “:-P” several times as part of his arguments that: (1) he lacked the intent required for conviction; and (2) his posts were easily misunderstood and communications that are subject to misunderstandings shouldn’t be criminalized. Holding that “Elonis’s conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal con­duct requirement of “awareness of some wrongdoing,” the Supreme Court’s opinion didn’t mention emoticons at all, however.

Each of these decisions involved a court’s assessment of a lengthy set of facts, of course. Context clearly counts. The point is that, in the words of WIRED’s Julia Greenberg, “When the digital symbol for a gun, a smile, or a face with stuck-out tongue comes up in court, they aren’t being derided or ignored. Emoji matter.”

And interpreting them will continue to be a challenge for courts. Emoticons and emoji are often ambiguous, sometimes supporting the accompanying text, sometimes undermining it. A smiley face with a tongue sticking out that accompanies a message purporting to confirm a deal could indicate the sender’s happiness that the deal has been concluded, or it could indicate that the sender’s purported confirmation is a joke.

Further complicating the interpretation of emoji is the fact that the same emoji character will have a different appearance when viewed on different platforms. For example, the popular “grinning face with smiley eyes” emoji that, say, a Microsoft platform user sees is not identical to the “grinning face with smiley eyes” emoji that, say, a Google platform user sees—even if the emoji was sent by the former to the latter. Moreover, a recent study found that the differences in an emoji’s appearance across platforms can result in different emotional responses to the emoji based on the platform from which it is viewed. As a result, a court seeking to interpret an emoji will need to determine in each situation which version of the emoji to consider: The version that appeared to the sender of the communication at issue or the version that appeared to the recipient of that communication?

It’s been said that one shouldn’t send a message that he or she wouldn’t want to see on the front page of the New York Times. I’d like to suggest a corollary rule: If you want a message to be free from ambiguity, don’t include an emoticon or emoji in the message.


Social Links: A social media marketing fail; Facebook and prisoners, jurors, older people

Posted in Big Data, First Amendment, Litigation, Marketing

We’re trying something new here at Socially Aware: In addition to our usual social-media and tech-law analyses and updates, we’re going to end each work week with a list of links to interesting social media stories around the Web, primarily things that caught our eye during the week that we may or may not ultimately write about in a future blog post.

Here’s our first list – enjoy!

Should prisoners be allowed to have Facebook pages?

Why do older people love Facebook? A New York Times writer asked her 61-year-old dad.

Judge upholds ex-cop’s murder conviction despite defense’s claim that juror’s Facebook posts evidenced a dislike for police.

The CIA’s venture capital arm is investing in companies that develop artificial intelligence to sift through enormous numbers of social media postings and decipher patterns.

Another cringe-worthy social media marketing campaign gaffe, this time by KFC Australia.

Facebook will now allow businesses to deliver automated customer support through chatbots.